Direct Request (CEACR) - adopted 2013, published 103rd ILC session (2014)

Discrimination (Employment and Occupation) Convention, 1958 (No. 111) - Indonesia (Ratification: 1999)

Article 1 of the Convention. National legislation concerning equality and non-discrimination. The Committee recalls the non-discrimination provisions in the Human Rights Act and Act No. 40 of 2008 concerning the elimination of racial and ethnic discrimination, and the Manpower Act No. 13 of 2003 which, however, lacks specificity in the elaboration of specific grounds of discrimination and a definition of direct and indirect discrimination. The Committee notes that the Government has continued to disseminate the Equal Employment Opportunity (EEO) Guidelines, which contain a clear definition of direct and indirect discrimination in the context of promoting gender equality and non discrimination. It also notes that the EEO Guidelines for the beverages, garment, plantation and tobacco subsectors focus on potential discrimination in recruitment, selection and placement of workers and the benefits of adopting and implementing EEO programmes for companies in these sectors. The Committee notes the Government’s request for ILO technical assistance to review discrimination on grounds other than sex with a view to expanding the scope of the EEO Guidelines beyond gender discrimination. With a view to assessing the effectiveness of the legislative framework, the Committee asks the Government to undertake, in collaboration with the social partners, a review of the law and practice, including complaints procedures, regarding discrimination in employment and occupation based on all the grounds referred to in the national legislation and included in Article 1(1)(a) of the Convention, and to include the recently established National EEO Task Force in this process. Please indicate the progress made in reviewing the EEO Guidelines with a view to expanding their scope beyond gender discrimination, and provide information on any steps taken to secure ILO technical assistance in this context. The Committee asks the Government to supply information on the practical application of the non-discrimination provisions in the abovementioned legislation, including the number and nature of violations found by the National Human Rights Commission, the labour inspectorate or any other enforcement authorities, or decisions handed down by the courts.

Sexual harassment. The Committee welcomes the efforts by the Government to actively disseminate and promote the voluntary Guidelines for the Prevention of Sexual Harassment (Circular No. SE.03/MEN/IV/2011), involving tripartite constituents at provincial and district levels, and provide technical guidance and training to industrial relations mediators in this context. It also notes, in particular, the efforts made by the employers’ organization (APINDO) to promote actively the use of the Guidelines among its members. The Committee requests the Government to continue to provide information on measures taken in collaboration with the social partners to implement the Guidelines at national, provincial and district levels in the public and private sectors, and on the results achieved through such action. Please include information on the number of complaints regarding sexual harassment lodged with the authorities and addressed, as well as the number of companies that have adopted anti-sexual harassment policies or established internal complaints mechanisms. With a view to providing legal certainty and effective protection, the Committee asks the Government to consider amending the Manpower Act or to adopt other legislation in order to prohibit and protect workers effectively against sexual harassment (both quid pro quo and hostile environment harassment) in employment and occupation, and to provide information on any progress made.

Discriminatory provisions. The Committee notes that pursuant to section 76(3) and (4) of the Manpower Act, employers who employ women at night (11 p.m.–7 a.m.) are required to provide women workers with nutritious food and drinks during hours of work at night as well as transport to and from the place of employment. Recalling that certain protective measures unrelated to maternity may provide an incentive to employers not to hire women, the Committee asks the Government to explain the reasons for exclusively providing those benefits to women workers and also to consider reviewing section 76(3) and (4) of the Manpower Act with a view to expanding the benefits related to night work to male workers.

Discrimination on the ground of religion. The Committee notes from the report of the National Commission on Violence against Women, entitled “In the name of regional autonomy: The institutionalization of discrimination in Indonesia” (2010), the increasing issuance of local religious by-laws which may have an impact on women’s access to and participation in employment, and on certain minorities, including in the civil service. With respect to its previous comments on the Regulation of the Minister of Manpower and Transmigration No. PER-04/MEN/1994, the Committee notes the Government’s general explanations regarding the obligation of the employer to pay religious allowances once a year. The Committee understands that the Government is in the process of reviewing religious by-laws and requests the Government to provide detailed information on this review and on any progress in amending or repealing discriminatory local by-laws that are contrary to the Convention. It also asks the Government to take the necessary measures to ensure that the adoption of religious by-laws does not result in direct or indirect discrimination against women or religious minority groups in employment and occupation, and to provide information in this regard. The Committee reiterates its request to the Government to indicate the specific measures taken to ensure that workers of faiths other than those enumerated in the Regulation of the Minister of Manpower and Transmigration No. PER-04/MEN/1994 are not discriminated against with regard to payment of religious allowances.

Discrimination based on political opinion. The Committee recalls its previous comments regarding the recruitment of civil servants, Government Regulation No. 98/2000 of 10 November 2000, Regulation No. 5/1999 and Regulation No. 37/2004 which provide for the dismissal of civil servants upon becoming members or leaders of political parties, and the Government’s explanations in this regard. The Committee notes that the Government merely reiterates that the provisions of Regulations Nos 98/2000 and 37/2004 cannot be amended as they are a result of national agreements aimed at ensuring the political neutrality of public servants, and recalls that, under the Convention, protection against discrimination based on political opinion extends to membership in political organizations or parties. The Committee urges the Government to take steps to assess the application in practice of the existing regulations with a view to ensuring that any limitations on prohibitions on becoming members or leaders of political parties are limited to the inherent requirements of the job, as strictly defined, and to amend Regulations Nos 5/1999, 98/2000 and 37/2004 in order to ensure that workers are not discriminated against based on political opinion.

National equality policy with respect to race, colour and national extraction. The Committee recalls Act No. 40 of 2008 concerning the elimination of racial and ethnic discrimination under which the National Human Rights Commission is responsible for supervising efforts aimed at eliminating all forms of racial and ethnic discrimination, and notes the absence in the Government’s report of any information on its practical application. The Committee also notes the Government’s indication that the Decree of the Minister of Manpower and Transmigration No. KEP-48/MEN/IV/2004 which provided a mechanism for the Government to examine compliance with non-discrimination principles (with regard to class or origin, belief or religion, and race or tribe) in company regulations and collective labour agreements, has been replaced by the Regulation of the Ministry of Manpower and Transmigration (No. PER-16/XI/2011). The Committee urges the Government to collect and provide information on the implementation of Act No. 40 of 2008, including any measures taken by the National Human Rights Commission to monitor the effectiveness of government policies aimed at eliminating racial and ethnic discrimination, and measures taken to raise awareness of the existence of the Act. Please provide a copy of the Regulation of the Ministry of Manpower and Transmigration No. PER-16/XI/2011, and information on other measures taken to ensure that company regulations and collective agreements do not contain discriminatory provisions.

Affirmative action. The Committee notes that sections 62(2) and (3) of the Special Autonomy Law for Papua provide for affirmative action to support indigenous Papuans’ access to employment, including in the judiciary, where they should have priority to be appointed as judge or prosecutor in Papua province. The Committee asks the Government to provide information on the results achieved through the affirmative action measures for native Papuans, including information on their employment situation, including in the judiciary. Please provide information on any other affirmative action measures that have been adopted or promoted at provincial or national levels, as a means of achieving substantive equality in employment and occupation for all groups of the population.

National equality policy in the public sector. The Committee notes from the data provided by the Government that, as of 1 January 2013, men represented 52.21 per cent and women 47.79 per cent of civil servants. In “other services” of the public sector, men represented 62.76 per cent and women 37.24 per cent. Recalling the important role of the State in pursuing the national equality policy in the public sector, in accordance with Article 3(d) of the Convention, the Committee asks the Government to provide comprehensive information on the measures taken in this regard with respect to all the grounds set out in the Convention. Please provide detailed statistical information on the distribution of men and women in the various posts and occupations in the civil service.

Enforcement. The Committee notes that, within the framework of the ILO project on gender mainstreaming and Indonesia’s Decent Work Country Programme, a draft training manual on the promotion of gender equality and non-discrimination at the workplace was developed for the Indonesian labour inspectorate and, in this context, training for labour inspectors’ trainers on promoting gender equality and non-discrimination in the workplace was held in November 2013. The Committee asks the Government to continue to provide information on the awareness-raising and capacity-building activities conducted for the labour inspectorate, and the results achieved. Please also provide information on the nature and number of violations of the relevant legislation detected by or reported to the labour inspectorate and the courts. Please also provide information on any measures taken to collect and disseminate information on discrimination cases addressed by the courts and the labour inspectorate to the wider public as a means of awareness raising on the principle of the Convention.