Observation (CEACR) - adopted 2011, published 101st ILC session (2012)

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

The Committee notes the response of the Government to the comments made by the International Trade Union Confederation (ITUC) in 2009. It also notes that in a communication dated 4 August 2011, the ITUC submits new comments which relate to a number of matters already raised by the Committee, as well as violations of the Convention, in particular violence against striking workers and acts of intimidation against union leaders. The Committee requests the Government to provide its observations thereon.

Trade union rights and civil liberties. In its previous comments, recalling that legitimate trade union activities should not be used as a pretext for arbitrary arrest or detention, the Committee requested the Government to provide information on measures taken, including specific instructions given to the police, so as to ensure that the danger of excessive violence in trying to control demonstrations is avoided, that arrests are made only where serious violence or other criminal acts have been committed, and that the police are called in a strike situation only where there is a genuine and imminent threat to public order. It further requested the Government to take the necessary measures to repeal or amend sections 160 and 335 of the Penal Code, respectively on “instigation” and “unpleasant acts”, so as to ensure that these provisions cannot be used abusively as a pretext for the arbitrary arrest and detention of trade unionists. The Committee notes that the Government indicates in its report that, in the case of a legal strike, it is only in case of anarchy that the police have the right to perform actions according to the legislation. The Government further indicates that in the absence of anarchy the police have no right of action (arrest or detention) even if the strike is unlawful. The Committee also notes the Government’s indication that it is conducting a review of the Penal Code. The Committee further notes that the allegations contained in the comments submitted by ITUC indicate that excessive violence and arrests in relation to demonstrations and police involvement in strike situations occurred in the country in 2010. In this context, the Committee hopes that, in the framework of the review of the Penal Code, sections 160 and 335 will be repealed or amended. The Committee requests the Government to provide information on the developments in this regard, as well as on other measures taken, including specific instructions given to the police, so as to ensure that the use of excessive power in trying to control demonstrations is avoided, that arrests are made only where serious violence or other criminal acts have been committed, and that the police are called in a strike situation only where there is a genuine and imminent threat to public order.

Article 2 of the Convention. Right to organize of civil servants. In its previous comments, the Committee expressed the hope that the Government would adopt an Act guaranteeing the exercise of the right to organize to civil servants, pursuant to section 4 of Act No. 21 of 2000, which proclaims that civil servants shall enjoy freedom of association and that the implementation of this right shall be regulated in a separate act, so as to bring the legislation into full conformity with the Convention. The Committee notes the Government’s indication that there are no developments with regard to the adoption of such a regulation, but that, in practice, both private and public school teachers formed the Teachers’ Association of the Republic of Indonesia (PGRI). The Committee reiterates its hope that the Government will adopt an Act guaranteeing the exercise of the right to organize to all civil servants, pursuant to section 4 of Act No. 21 of 2000, and requests the Government to indicate in its next report any progress made in this regard.

Right to organize of employers. In its previous comments, the Committee requested the Government to specify whether employers’ organizations could be established independently of the Indonesian Chamber of Commerce and Industry (KADIN). The Committee notes that the Government indicates that, while there is no organization outside KADIN, no stipulation in regulation proscribes employers from establishing organizations other than KADIN, which is the parent organization of employers’ organizations. The Government also indicates that APINDO (Indonesian Employers Association), which is affiliated to KADIN, is the employers’ organization which is given the authority in the field of industrial relations. The Committee recalls that the designation by its name of a workers’ or employers’ organization in the legislation for the purpose of consultation or other benefits should be avoided in order to ensure the free exercise of freedom of association and that it would be preferable to make reference to the most representative organization of the concerned sector. The Committee intends to address this issue in depth once Act No. 1/1987 concerning KADIN is fully translated into an ILO official language.

Article 3. Right of workers’ organizations to organize their activities and formulate their programmes without interference by the public authorities. Conditions for the exercise of the right to strike. In its previous comments, the Committee requested the Government to take the necessary measures to amend section 4 of Ministerial Decree No. KEP.232/MEN/2003, so that a finding as to whether negotiations have failed, which is a condition for the lawful staging of strikes, can be made either by an independent body or be left to the unilateral determination of the parties to the dispute. The Committee notes the Government’s comments that section 4 of Ministerial Decree No. KEP.232/MEN/2003 is in accordance with the conditions of employment in Indonesia and that it did not see any difficulties in performing the procedure on strikes. The Committee once again requests the Government to amend section 4 of Ministerial Decree No. KEP.232/MEN/2003, so that a finding as to whether negotiations have failed can be made either by an independent body or be left to the unilateral determination of the parties to the dispute.

Exhaustion of mediation/conciliation procedures. The Committee had noted that the time period accorded to mediation/conciliation procedures, as provided for in the Industrial Relations Dispute Settlement Act No. 2 of 2004, could be more than 60 days. It had requested the Government to ensure that this time period would be reduced if the exhaustion of mediation/conciliation was a condition for the lawful exercise of the right to strike. The Committee recalls that conciliation, mediation and voluntary arbitration should have the sole purpose of facilitating bargaining and should not be so complex or slow that a lawful strike becomes impossible in practice or loses its effectiveness. Noting the Government’s information that it is conducting a review of Act No. 2 of 2004 and that currently many strikes have occurred without waiting on the exhaustion of these procedures, the Committee requests the Government to provide information on developments in this regard.

Objectives of strikes. In its previous comments, the Committee requested the Government to take the necessary steps so as to allow trade union federations and confederations to engage in industrial action linked to questions of general social and economic policy. The Committee notes that the Government indicates that it has not made arrangements concerning strikes related to issues of social and economic policies and that it believes that such strikes are categorized as demonstrations regulated in Act No. 9 of 1998 on Freedom of Expression in Public. The Committee recalls that organizations responsible for defending workers’ socio-economic and occupational interests should, in principle, be able to use strike action to support their position in the search for solutions to problems posed to major social and economic policy trends which have a direct impact on their members and on workers in general, in particular as regards employment, social protection and the standard of living. The Committee requests the Government provide with its next report a copy of Act No. 9 of 1998.

Restrictions on the right to strike in the railway service. In its previous comments, the Committee requested the Government to indicate steps taken or contemplated to ensure that the only railway workers encompassed by section 139 of Manpower Act No. 13 of 2003, and so with a limited right to strike, are railway intersection workers. The Committee notes that the Government confirms that the explanatory note on section 139 of the Manpower Act No. 13 of 2003 provides that only railway intersection officers are included among the workers that relate to public safety since they have specific duties which differ from those of other railway workers.

Sanctions for strike action. In its previous comments, the Committee requested the Government to take the necessary measures in order to amend its legislation to ensure that no penal sanction should be imposed against a worker for having carried out a peaceful strike and therefore measures of imprisonment should not be imposed on any account. Such sanctions could be envisaged only where during a strike, violence against persons or property or other serious infringements of rights have been committed, and can be imposed pursuant to legislation punishing such acts. Nevertheless, even in the absence of violence, if the strike modalities had the effect of making the strike illegitimate, proportionate disciplinary sanctions may be imposed against strikers. The Committee notes that section 186 of the Manpower Act regulates criminal conviction for violation of sections 137 and 138(1) of the Manpower Act which make provisions in relation to the right to strike. The Committee requests the Government to take the necessary measures to amend section 186 of the Manpower Act so as to bring it into conformity with the above principle in accordance with the Convention.

Recalling that section 6(2) and (3) of Ministerial Decree No. KEP.232/MEN/2003 results in the situation that striking workers were considered to resign by virtue of not having responded to back-to-work orders from employers, prior to a finding by an independent body that the strike in question is illegal, the Committee requested the Government to amend this section to ensure that employers can only issue back-to-work orders to workers after an independent body has determined that the strike is illegal. The Committee notes that the Government indicates that it is conducting a review of Ministerial Decree No. KEP.232/MEN/2003. The Committee requests the Government, in the framework of this review, to ensure that section 6(2) and (3) of Ministerial Decree No. KEP.232/MEN/2003 is amended to ensure that employers can only issue back-to-work orders to workers after an independent body has determined that the strike is illegal. The Committee requests the Government to provide information on developments in this regard.

Article 4. Dissolution and suspension of organizations by administrative authority. In its previous comments, the Committee had noted that if trade union officials violate either sections 21 or 31 of the Trade Union/Labour Union Act No. 21 of 2000 – by either failing to inform the Government of any changes in the union’s constitution or by laws within 30 days or failing to report any financial assistance coming from overseas sources – serious sanctions can be imposed under section 42 of the Trade Union/Labour Union Act, namely, the revocation and loss of trade union rights or suspension. Considering that such sanctions are disproportionate, the Committee requested the Government to indicate the measures taken or contemplated so as to repeal the reference to sections 21 and 31 in section 42 of the Trade Union/Labour Union Act. The Committee also requested the Government to indicate the measures taken or contemplated so as to ensure that organizations affected by measures of dissolution or suspension by the administrative authority have a right of appeal to an independent and impartial judicial body, and that such administrative decisions do not take effect until that body issues a final decision. Noting the Government’s indication that it is conducting a review of the Trade Union/Labour Union Act No. 21 of 2000, the Committee expresses the hope that, in the framework of this review, the Government will fully take into account the Committee’s comments. It requests the Government to provide information on developments in this regard.

The Committee reminds the Government that it may avail itself of the technical assistance of the Office, if it so wishes, in relation to the issues raised in these comments.

The Committee is raising other points in a request addressed directly to the Government.