Observation (CEACR) - adopted 2016, published 106th ILC session (2017)

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

Articles 1 and 2 of the Convention. Adequate protection against acts of anti-union discrimination and employer interference. The Committee previously requested the Government to take steps to amend the legislation to ensure comprehensive protection against anti-union discrimination, providing for effective procedures that may impose sufficiently dissuasive sanctions against such acts. It also requested the Government to provide practical information in this regard and a copy of Decree No. 03 of 1984 of the Minister of Manpower. The Committee notes the Government’s indication that, after conducting a review of the Trade Union Act, it is considered that there is no urgency to revise the Act. Emphasizing the importance of ensuring effective protection against acts of anti-union discrimination and interference, and sufficiently dissuasive sanctions to prevent repetition of such acts, the Committee requests the Government to provide statistics with its next report on the number of complaints of anti-union discrimination and interference filed with: (a) the police; (b) the labour inspectorate; and (c) the courts, as well as the steps taken to investigate these complaints, the remedies and sanctions imposed, as well as the average duration of proceedings under each category.

Article 2. Adequate 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 in an enterprise shall have the right to represent the workers in collective bargaining. The Committee notes that the Government reiterates that the employer is only present during the vote to ensure that those voting are actually workers, and that the employer’s presence does not affect the voting. The Government adds that no complaints have been submitted to it by workers in this regard. The Committee considers that this point is related to the need to ensure effective mechanisms for addressing complaints of interference in trade union internal affairs mentioned above and observes that there are other mechanisms that may be used to ensure that only eligible workers vote without creating an environment that may be considered to be intimidating. The Committee requests the Government to provide information on the steps taken when next reviewing the Manpower Act to amend this provision so as to ensure that workers may carry out their activities without undue interference from the employer.

Article 4. Promotion of collective bargaining. In its previous comments, the Committee had requested the Government to take measures to amend sections 5, 14 and 24 of Act No. 2 of 2004 concerning industrial relations dispute settlement, which enables 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 has failed. The Committee notes that the Government reiterates that Act No. 2 of 2004 provides for industrial relations dispute settlement through arbitration, conciliation or mediation (in case of failure of conciliation or mediation, any of the parties may bring the case to the Industrial Court). The Committee observes that the ability of one of the parties, as per sections 5, 14 and 24 of Act No. 2 of 2004, to refer the dispute to the Court if settlement cannot be achieved through conciliation or mediation, constitutes compulsory arbitration. While noting the indication in the Government’s report that the Act did not affect negotiations within the sense of Article 4 of the Convention, it also observes that the Act refers to four types of industrial disputes, including interest disputes, which also appear to be covered by the abovementioned sections. Emphasizing that compulsory arbitration at the initiative of one party in an interest dispute does not promote voluntary collective bargaining, the Committee requests the Government to review sections 5, 14 and 24 of Act No. 2 of 2004 with the social partners concerned so as to ensure that recourse to compulsory arbitration to resolve an interest dispute can only be invoked in the case that both parties agree, or in the case of public servants engaged in the administration of the State (Article 6 of the Convention), essential services in the strict sense of the term and acute national crises. It further requests the Government to provide information on the number of cases referred to compulsory arbitration by only one party to the dispute and the circumstances involved in those cases.

Recognition of organizations for the purposes of collective bargaining. The Committee previously commented on section 119(1) and (2) of the Manpower Act, according to which, in order to negotiate a collective agreement, a union must have membership equal to more than 50 per cent of the total workforce in the enterprise or receive more than 50 per cent support in a vote of all the workers in the enterprise. The Committee also notes that, if the relevant union does not obtain 50 per cent support in such a vote, it may once again put forward its request to engage in collective bargaining after a period of six months. The Committee requests the Government to provide information in its next report on the manner in which collective bargaining is conducted in enterprises where no union represents 50 per cent of the workers.

Time limit for collective bargaining. The Committee previously noted the Government’s indication that collective agreements must be concluded within 30 days after the beginning of negotiations, and requested the Government to ensure the application of the principles concerning the free and voluntary exercise of collective bargaining. The Committee notes from the Government’s latest report that negotiation may continue beyond 30 days if both parties wish to continue.

Federations and confederations. The Committee previously noted the Government’s indication that there has been no report of federations or confederations of trade unions having signed collective agreements, and requested it to ensure that such information is publicly available and to continue to provide information concerning collective agreements signed by federations or confederations. The Committee notes that the Government refers in its latest report to enterprise bargaining which is only for the parties at the enterprise level. The Committee further notes the recommendation in the report of the direct contacts mission, which visited the country within the framework of the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), and the recommendation supported by the social partners for consideration of a pilot exercise for the promotion of collective bargaining, accompanied by capacitated mediators and access to industrial courts or arbitrators, as appropriate. The Committee further notes from the Government’s response that it welcomes the recommendation of the direct contacts mission for a pilot exercise promoting collective bargaining in Bekasi and that it looks forward to discussing the modalities. The Committee requests the Government to provide information on the progress made in this regard, including on the impact on collective bargaining at the sectoral and regional levels, and the results of this pilot exercise.

Export processing zones (EPZs). In its previous observations, the Committee had repeatedly 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 on the number of collective agreements in force in the EPZs and the percentage of workers covered, as well as on the number of complaints of anti-union discrimination and employer interference in EPZs and the relevant investigation and remediation measures. While noting the Government’s reiteration that it is still in coordination with the relevant parties on this matter, the Committee deeply regrets that this information is not yet available as it would assist the Government in analysing the challenges that might occur in EPZs. The Committee once again requests the Government to provide data concerning the number of collective agreements in EPZs and workers covered by them, as well as on the number of complaints of anti-union discrimination and employer interference in EPZs and the relevant investigation and remediation measures.