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

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

Articles 1 and 2 of the Convention. Legislation concerning equality and non-discrimination. The Committee recalls that Law No. 39 of 1999 concerning human rights and Law No. 40 of 2008 concerning the elimination of racial and ethnic discrimination contain non-discrimination provisions that define and prohibit direct and indirect discrimination on a number of grounds covered under Article 1(1)(a) of the Convention, but that sections 5 and 6 of Law No. 13 of 2003 concerning manpower (Manpower Act) do not specifically elaborate on specific grounds of discrimination nor define direct and indirect discrimination. The Committee recalls that it has requested the Government to undertake a review of the law and practice, including complaints procedures regarding discrimination, but notes that the Government’s report does not provide information on any steps taken in this regard. The Committee notes the Government’s indication that the Equal Employment Opportunity (EEO) Guidelines of 2005, which aimed to fill some of the gaps in the Manpower Act, have been also revised to deal with grounds of discrimination other than sex, but that a copy of the Guidelines has not been provided to the Committee. With a view to assessing the effectiveness of the current legislative framework, the Committee once again requests the Government to undertake 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 National Task Force on Equal Employment Opportunities as well as social partners in this process. The Committee requests the Government to provide a copy of the revised EEO Guidelines and to continue to provide information on the practical application of the non-discrimination provisions in the abovementioned legislation.

Article 1(1)(a). Sexual harassment. In its previous comments, the Committee requested further information on measures taken to implement the voluntary Guidelines on Sexual Harassment Prevention at the Workplace (Circular No. SE.03/MEN/IV/2011), as well as on the number of companies that have adopted anti-sexual harassment policies or established internal complaints mechanisms. It also encouraged the Government to consider amending the Manpower Act to effectively prohibit and protect workers against sexual harassment in employment and occupation. The Committee notes the Government’s indication that the Strategic Action Plan of the EEO Task Force provides for the dissemination of the Guidelines at the provincial and district/city levels through its local level Task Forces, and that the Guidelines have been adopted in company regulations and collective labour agreements, as well as in national regulations. The Government therefore considers that there is no urgent need to amend legislation to regulate the prohibition of sexual harassment. The Committee requests the Government to continue to provide information on measures taken, in collaboration with social partners, to disseminate and implement the Guidelines on Sexual Harassment (Circular No. SE.03/MEN/IV/2011) at the national, provincial, and district/city levels, with an indication of the specific examples of company regulations and collective agreements that have incorporated the Guidelines, as well as the remedies granted to victims of sexual harassment. The Committee further requests the Government to provide examples of national regulations that have incorporated the Guidelines.

Discriminatory provisions. The Committee recalls that section 76(3) and (4) of the Manpower Act requires employers who employ women during the night to provide these workers with food and drink, as well as transportation to and from the place of employment. The Committee notes the Government’s reply that, in practice, this treatment extends to male as well as female workers. With a view to ensuring equality of opportunity and treatment, the Committee requests the Government to reflect actual practice and consider revising section 76(3) and (4) of the Manpower Act, expanding the benefits related to night work to male workers.

Discrimination on the ground of religion. The Committee notes the Government’s indication that the Regulation of the Minister of Manpower and Transmigration No. PER-04/MEN/1994 has been revoked and replaced by the Regulation of the Minister of Manpower No. 6 of 2016 on Religious Holiday Allowance for Employees/Workers. According to the Government there is no discrimination in the provision of religious holiday allowance, and the religions stated in Regulation No. 6 covers all religions that currently exist and abided by Indonesian citizens. It notes that section 1(2) of the Regulation recognizes religious holidays for the following religions: Islam, Catholic and Protestant Christianity, Hinduism, Buddhism and Confucianism; no reference is made to other religions. With regard to its previous request for information on the progress made of the Government’s review of local religious by-laws, which may have an impact on the access to and participation in employment for women and certain minorities, including in the civil service, the Committee notes that the Government provides no further information. The Committee therefore must reiterate its request to the Government to take measures to ensure that workers who belong to faiths other than those enumerated in Regulation No. 6 of 2016, are not discriminated against with regards to religious holiday allowances. The Committee once again requests the Government to provide detailed information on the progress made with regard to the review of discriminatory local religious by-laws, as well as measures taken to amend or repeal discriminatory local by-laws that are contrary to the Convention. In this connection, it also once again requests the Government to take the necessary measures to ensure that the adoption of religious by-laws do not result in direct or indirect discrimination against women or religious minority groups in employment and occupation, and to provide information in this regard.

Discrimination based on political opinion. The Committee recalls its previous comments regarding 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. The Committee notes with regret that the Government repeats its general indication that the provisions of Regulation Nos 98/2000 and 37/2004 cannot be amended because civil servants must remain neutral with regards to politics. The Committee emphasizes again that, under the Convention, protection against discrimination based on political opinion extends to membership in political organizations or parties. The Committee once again urges the Government to amend Regulation Nos 5/1999, 98/2000 and 37/2004 in order to ensure that workers are not discriminated against based on political opinion, and to take steps to assess how existing regulations are applied in practice with a view to ensuring that any prohibitions on civil servants becoming members or leaders of political parties are limited to the inherent requirements of the job, as strictly defined.

Article 2. National equality policy with respect to race, colour and national extraction. In its previous comments, the Committee requested the Government to provide information on the implementation of Law No. 40 of 2008 concerning the elimination of racial and ethnic discrimination including measures taken by the National Human Rights Commission to monitor Government policies aimed at eliminating racial and ethnic discrimination. The Government merely indicates that steps have been taken to require employers to register company regulations and collective agreements with responsible authorities, and that measures have been taken to ensure that such documents are not discriminatory. The Committee further notes that sections 8 and 28 of the Regulation of the Ministry of Manpower and Transmigration No. PER-16/XI/2011, which replaced the Decree of the Minister of Manpower and Transmigration No. KEP-48/MEN/IV/2004, continue to provide a mechanism for Government authorities to examine compliance with labour legislation when approving company regulations and collective labour agreements. The Committee once again urges the Government to provide detailed information on measures taken to implement Law No. 40 of 2008 concerning the elimination of racial and ethnic discrimination in employment and occupation, including measures taken, and results achieved, by the National Human Rights Commission to monitor the effectiveness of relevant government policies and measures taken to raise awareness of the existence of the Law. The Committee also asks the Government to undertake an assessment of the practical application of Regulation No. PER-16/XI/2011, including the number of registration applications for company regulations and collective labour agreements that have been rejected by relevant labour authorities on the ground that they violate sections 5 and 6 of the Manpower Act dealing with discrimination, and to provide information in this regard.

Affirmative action. The Committee recalls that section 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, and it had requested the Government to provide information on its application. The Committee notes information provided by the Government concerning quotas for indigenous Papuans in vocational training, and the programmes to promote their recruitment in the private sector. In order to enable the Committee to assess in an effective manner the application of the national equality policy to indigenous populations, it requests the Government to provide additional information indicating the specific results achieved through affirmative action measures for indigenous Papuans, including information regarding their recruitment in both public and private sectors such as the judiciary and local companies, as well as the number of indigenous Papuans enrolled in vocational training. The Committee also reiterates its request to 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.

Enforcement. The Committee notes the Government’s indication that collective labour agreements regulate the prohibition of discrimination as defined under sections 5 and 6 of the Manpower Act, and that complaints and grievances arising from such agreements are handled by bipartite and tripartite cooperation institutions and related agencies such as the Ministry of Manpower and Transmigration. The Committee notes, however, the Government’s indication that no complaints have been submitted to labour inspectors with regards to the application of Law No. 39 of 1999 concerning human rights and Law No. 40 of 2008 concerning the elimination of racial and ethnic discrimination, and that only one complaint was submitted with regards to sexual harassment in 2016. The Government however indicates that technical training on discrimination is being provided to labour inspectors on an annual basis, including in Riau Islands Province and West Sumatra in 2016, and that awareness-raising measures such as advertisements and broadcasts have targeted the general public. The Government also indicates that the National Strategic Action Plan for 2013–19, issued by the EEO Task Force, envisages that the EEO Task Force will have a role in handling, monitoring, and following up with complaints and grievances, but that this part of the Plan has not yet been implemented. The Committee notes that seven Provincial and two Municipal/District level EEO Task Forces have been established to date. The Committee requests the Government to continue to provide specific information on measures taken or envisaged to ensure that the non-discrimination provisions in the relevant legislation are implemented effectively. In this regard, the Committee asks the Government to provide information on any measures taken or envisaged under the Action Plan to build the capacity of the EEO Task Force on handling complaints and grievances, as well as measures to effectively address claims of discrimination in employment and occupation on prohibited grounds under Article 1(1)(a) of the Convention, including through coordination with the labour inspectorate. The Committee further requests the Government to continue to provide information on the number and nature of violations found by the labour inspectorate or other enforcement authorities, as well as decisions handed down by the courts. Please also include information on the results from the monitoring of company regulations and collective labour agreements by bipartite and tripartite institutions and the Ministry of Manpower and Transmigration.