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

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 2016, which are of a general nature. The Committee further notes the observations of the IOE and the Indonesian Chamber of Commerce and Industry (APINDO) received on 30 August 2016. The Committee also notes the observations received on 31 August 2016 from the International Trade Union Confederation (ITUC). The Committee requests the Government to provide its comments on the new allegations raised in the latest ITUC communication, as well as on the joint observations of the IOE and the APINDO.

Follow-up to the conclusions of the Committee on the Application of Standards (International Labour Conference, 105th Session, May–June 2016)

The Committee notes the discussion that took place in the Conference Committee on the Application of Standards (hereinafter the Conference Committee), in June 2016 concerning the application of the Convention. The Committee observes that the Conference Committee, expressing its deep concern regarding numerous allegations of anti-union violence and limitations on the rights protected by the Convention by national legislation, urged the Government to: ensure that workers are able to engage freely in peaceful actions in law and practice without sanctions; with regard to violence against trade unionists by private actors or public officials, ensure the immediate establishment of independent judicial inquiries to determine responsibility and to punish those responsible. The Conference Committee further urged that the Government should investigate allegations of police inaction in the face of these violent acts and ensure that those who failed to carry out their official duty to protect workers from harm are sanctioned; institute adequate measures to prevent the repetition of such acts by means of appropriate measures such as education and training of the police, as well as police accountability; amend or repeal the relevant sections of the Penal Code to avoid the arbitrary arrest and detention of trade unionists; pass implementing legislation to extend the right to freedom of association to civil servants; ensure that if a trade union is suspended or dissolved this decision may be appealed to an independent judicial body and the order suspended until appeals are exhausted; and accept a direct contacts mission (DCM) to develop a roadmap to implement these conclusions.

The Committee notes with interest the Government’s acceptance of a DCM, which visited the country from 2 to 7 October 2016, and the Committee will review the developments noted in the mission’s conclusions and recommendations in relation to the matters raised in the Committee’s previous comments and by the Conference Committee. It notes from the DCM report that the members were encouraged by the repeated desire expressed by all to rebuild mutual trust and confidence among the social partners and shares the hope that the reconvening of the National Tripartite Council will enable the parties to develop a constructive and conducive industrial relations climate to the benefit of all in Indonesia. In this regard, the Committee welcomes the Government’s response to the recommendations of the DCM and in particular its commitment to optimize the National Tripartite Council to examine and resolve industrial issues.

Trade union rights and civil liberties. The Committee previously requested the Government to provide its comments on the 2011, 2012 and 2014 ITUC allegations concerning violence and arrests in relation to demonstrations and strikes, and to carry out investigations in this regard. The Committee further notes the latest communication from the ITUC which alleges that another lawful and peaceful protest was dispersed with water cannons and tear gas and for which workers continue to face criminal charges. According to the ITUC, peaceful demonstrations in other parts of the country were similarly disrupted. On the question of criminal charges, the Committee notes with interest the Government’s indication in response to the DCM recommendations that the Panel of Judges of Central Jakarta District Court has decided that the 23 unionists who were involved in demonstration action in October 2015 are free of charges.

The Committee further notes the detailed information provided by the Government in its report, as well as the lengthy discussions with all parties concerned in relation to the 2013 demonstrations, as reflected in the DCM report. This information included the advance measures taken to prevent incidents of violence arising during demonstrations, deeply regrettable violence against workers and follow-through prosecution of some individuals. The Committee further notes from the DCM report that the workers’ organizations were not satisfied with the steps taken so far and that their complaints concerning the role of the police were not followed up on. The Committee also notes from the IOE and APINDO communication that the violent incident in 2013 concerned a clash between labour groups and ordinary citizens due to the social disturbance created by the demonstrations, while clashes with the police in 2014 concerned a chaotic and anarchic situation. They further refer to unlawful activities that often accompany demonstrations, such as factory sweeping, destruction of property and blocking of public transport infrastructure. APINDO indicates that while it does support the implementation of the Convention, including the workers’ peaceful freedom of expression, it considers that the actions taken in these cases were not peaceful.

Finally, the Committee notes from the Government’s response to the DCM recommendations its statement that an investigation was carried out by the Security and Profession Division of the Metro Jakarta Police into the allegations of police inaction and that it was found that the Bekasis Police addressed the demonstration in accordance with standard operating procedures. The Committee requests the Government to provide a copy of the police report. Further observing the diverse information provided in relation to the incidents described above, the Committee notes that some of these matters were recently examined by the Committee on Freedom of Association (see Case No. 3176, 380th Report, paragraphs 590–634). The Committee, noting from the DCM report the indications that the Indonesian National Police would follow up on any complaints that had not yet been responded to, requests the Government to ensure that all complaints are fully addressed and that such inquiries enable the facts to be fully clarified, responsibility determined, the punishment of those responsible, and appropriate compensation for any damages suffered so as to prevent the repetition of such incidents. The Committee further underlines the recommendation in the DCM report that the 2005 Police Guidelines on the conduct of police in handling law and order in industrial disputes be used as a basis for full consultations with all stakeholders, led by the Ministry of Manpower, in order to socialize the Guidelines, ensure their implementation and consider their review. The Committee requests the Government to provide information on the steps taken in this regard.

As regards the Committee’s previous requests to 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, the Committee notes with interest from the DCM report that the reference to unpleasant acts in section 335 was declared unconstitutional and annulled by the Constitutional Court in 2013 and that this decision and other relevant decisions were fully taken into account in the current revision. The Committee further notes the draft provisions cited in the Government’s report and the explanations given to the meaning of the word “incitement” with respect to the intention to commit a criminal act. The Committee requests the Government to provide a copy of the revised Penal Code once it is adopted.

Article 2 of the Convention. Right to organize of civil servants. In its previous comments, the Committee requested the Government to guarantee the freedom of association of civil servants, pursuant to section 44 of Act No. 21 of 2000 concerning trade unions, through issuing the implementing regulations called for in the Act. The Committee notes from the Government’s reply to the DCM recommendations that it was still in the process of formulating the national regulation on the civil servants’ right to organize, under the coordination of the Ministry of Empowerment of State Apparatus and Bureaucracy Reform. The Committee underlines once again the importance of giving effect to the right to freedom of association of civil servants and reminds the Government that the technical assistance of the Office is available in this regard.

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 and 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 with interest the information provided by the Government that the reference to sections 137 and 138 (concerning strikes) in section 186 on sanctions has been declared by the Constitutional Court to be not legally binding and, therefore, the sanction provision is no longer available.

As regards the review of Ministerial Decree No. KEP.232/MEN/2003, the Committee notes the Government’s indication that the back-to-work orders referred to in section 6 concern instances of illegal strike action. It also notes the circumstances for determining the failure of negotiations after a deadlock in negotiations lasting 14 days.

The Committee requests the Government to provide information on the number of interest disputes referred to conciliation and mediation, the average time period for such procedures and to indicate the number of interest disputes referred to the industrial court for a final determination without the consent of both parties and any relevant information on the circumstances of such cases.

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 from the DCM report that these provisions have not been invoked to revoke a union record number, that any such decisions are subject to appeal before the State Administrative Court and that they did not appear to be among the priority concerns of the union. The Committee further notes the Government’s response to the DCM recommendations that this provision only concerns the suspension of a record number (which would appear to deregister the union), and that dissolution can only be carried by the union members in accordance with its by-laws, where the enterprise no longer exists and all obligations have been fulfilled to the workers and if it is so declared by the court. The Committee nevertheless expresses its concern that dissolution, or even suspension of a union, constituting as they do extreme forms of interference by the authorities in the activities of trade union organizations, could be invoked due simply to a failure to inform a change in a statute or the receipt of overseas financial assistance. The Committee requests the Government to provide information on any measures taken to ensure that unions may not be dissolved or suspended simply due to delays in informing of constitutional changes or foreign aid, as well as on any use of this authority.