Observation (CEACR) - adopted 2015, published 105th ILC session (2016)

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

The Committee notes the observations of the International Organisation of Employers (IOE) received on 1 September 2014. The Committee further notes the observations received on 1 September 2014 from the International Trade Union Confederation (ITUC), which relate to: (i) legislative matters already raised by the Committee; (ii) issues pending before the Committee on Freedom of Association in Case No. 3050; and (iii) serious allegations of acts of violence against peacefully striking workers committed on 31 October 2013 by paramilitary organizations, leaving 17 workers severely injured while police officers deployed at the site took no action; and on 2 July 2014 by the riot police at the request of a food packaging company, leaving 20 workers severely injured. The Committee refers to the conclusions and recommendations made by the Committee on Freedom of Association in the framework of Case No. 3050, and requests the Government to provide its comments with respect to point (iii).

Trade union rights and civil liberties. The Committee previously requested the Government to provide its comments on the 2011 and 2012 ITUC allegations concerning violence and arrests in relation to demonstrations and strikes, and to take measures to ensure that the use of excessive violence in trying to control demonstrations is avoided, that arrests are made only where criminal acts have been committed, and that the police are called in strike situations only where there is a genuine and imminent threat to public order. The Committee notes that the Government confines itself to indicating that it has never received reports with regard to the alleged shooting incident during a demonstration and that it will coordinate with the Indonesian National Police in order to obtain the proper data and evidence. The Committee requests the Government: (i) to provide its comments on the remaining 2011, 2012 and 2014 ITUC communications alleging violence against striking workers, acts of intimidation against union leaders, excessive violence and arrests in relation to demonstrations and police involvement in strike situations, and to carry out investigations in response to these serious and recurrent allegations, some of which have also been highlighted by the Committee on Freedom of Association (see 374th Report, Case No. 3050, paragraphs 436–478); and (ii) to ensure, by means of appropriate measures such as education and training of the police as well as police accountability, that the use of excessive violence in trying to control demonstrations is avoided, that arrests are made only where perpetrators have committed serious violence or other criminal acts, and that the police are called in strike situations only where there is a genuine and imminent threat to public order.

Furthermore, the Committee had 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” against employers, so as to ensure that these provisions cannot be misused as a pretext for the arbitrary arrest and detention of trade unionists. The Committee notes that the Government indicates that it agrees that the Penal Code including sections 160 and 335 will be amended but that the revision process will have to await the new legislative session (2014–19). The Committee trusts that, in the framework of the revision of the Penal Code announced by the Government, sections 160 and 335 will be repealed or amended in the near future. It requests the Government to provide information on the developments in this regard.

Article 2 of the Convention. Right to organize of civil servants. The Committee previously expressed the hope that the Government would adopt an act guaranteeing the exercise of the right to organize of civil servants, pursuant to section 44 of Act No. 21 of 2000 concerning trade unions, 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 conformity with the Convention. The Committee notes that the Government indicates that, although section 44 of the Trade Union Act bestows upon civil servants the right of association the implementation of which shall be regulated by specific legislation, there have been hitherto no proposals from civil servants to establish a union. The Committee underlines the importance of giving effect to the right to freedom of association of civil servants enshrined in section 44(1) of the Trade Union Act through implementing legislation guaranteeing and regulating its exercise as stipulated in section 44(2), and requests the Government to indicate any developments in this regard, as well as any information about proposals from civil servants to establish a union.

Article 3. Right of workers’ organizations to organize their activities. The Committee previously pointed to a number of shortcomings in relation to the exercise of the right to strike, in particular concerning: (i) the manner of determining failure of negotiations (section 4 of Ministerial Decree No. KEP.232/MEN/2003); (ii) the issuance of back-to-work orders prior to the determination of the illegality of the strike by an independent body (section 6(2) and (3) of Ministerial Decree No. KEP.232/MEN/2003); (iii) the extensive time period accorded to mediation/conciliation procedures (Industrial Relations Dispute Settlement Act No. 2 of 2004); and (iv) the criminal conviction for violation of certain provisions in relation to the right to strike (section 186 of Manpower Act No. 13 of 2003). The Committee notes the Government’s view regarding point (iv) that it is not necessary to amend section 186, given that sanctions need to be imposed by law if the right to freedom of opinion, association and gathering guaranteed by the Indonesian Constitution is implemented in such a way that the strike causes disturbance of public order and anarchy. Recalling that it has continually emphasized that no penal sanctions, including measures of imprisonment or fines, should be imposed against a worker for having carried out a peaceful strike, the Committee urges the Government to take the necessary measures to ensure that section 186 of the Manpower Act is amended accordingly in the near future. In the absence of information concerning the review of Ministerial Decree No. KEP.232/MEN/2003 and the Industrial Relations Dispute Settlement Act previously announced by the Government, the Committee trusts that its comments will be duly taken into account in this context in order to bring the legislation into full conformity with the Convention. It requests the Government to provide information on the progress achieved in this respect.

Article 4. Dissolution and suspension of organizations by the administrative authority. The Committee previously noted that if union officials violate section 21 (failure to inform the Government of changes in union constitution or by-laws within 30 days) or section 31 (failure to report financial assistance from overseas) of the Trade Union Act, serious sanctions can be imposed under section 42 of the same Act (revocation and loss of trade union rights or suspension), and requested the Government to indicate the measures taken to: (i) repeal the reference to sections 21 and 31 in section 42 of the Trade Union Act; and (ii) ensure that organizations affected by dissolution or suspension by the administrative authority have a right of appeal to an independent judicial body, and that such administrative decisions do not take effect until that body issues a final decision. The Committee notes the Government’s indication that the applicable regulations seek to protect the right of association and avoid internal conflicts between trade unions, and that the Government provides guidance to unions in this regard. In the absence of information concerning the review of the Trade Union Act previously announced by the Government, the Committee recalls that dissolution and suspension constitute extreme forms of interference by the authorities in the activities of trade union organizations and should therefore be accompanied by all the necessary guarantees, which can only be ensured through a normal judicial procedure with the effect of a stay of execution of the relevant administrative decision. The Committee requests the Government to take the necessary measures: (i) to ensure that section 42 of the Trade Union Act is amended so as to remove the reference to sections 21 and 31, and, in the meantime, to provide information as to any sanctions that have been imposed thereunder; and (ii) to ensure that organizations affected by dissolution or suspension by the administrative authority have a right of appeal to an independent judicial body, with suspensive effect.

The Committee reminds the Government that if it so wishes it may take advantage of technical assistance from the International Labour Office in relation to the issues raised in these comments.

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

[The Government is asked to reply in detail to the present comments in 2016.]