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

Individual Case (CAS) - Discussion: 2016, Publication: 105th ILC session (2016)



A Government representative reiterated her Government’s strong commitment to the implementation of the Convention, and to the fulfilment of the rights of workers, including the right to freedom of peaceful assembly and of association in accordance with national laws and regulations. Turning to the request by the Committee of Experts to provide information on the serious allegations of acts of violence against peacefully striking workers committed on 31 October 2013 by paramilitary organizations and on 2 July 2014 by the riot police, she emphasized that striking was one of workers’ rights resulting from failed negotiations between workers and the employer which should be conducted in an orderly and peaceful manner, in compliance with Indonesian law. Act No. 13 of 2003 clearly established the definition and mechanism of strikes in order to ensure that their exercise did not disrupt public order. In particular, trade unions should not carry out sweeping activities, block roads, carry weapons or other sharp devices that might harm others, or commit acts of anarchy. However, the strike on 31 October 2013 had not been conducted in a peaceful manner, as the demonstrators had passed through residential areas, blocked public roads and provoked tension and clashes between them and the local community, including community organizations, which were not “paramilitary organizations”, as indicated in the report of the Committee of Experts. Considering that the use of the term “paramilitary organizations” was misleading, as such organizations were not recognized in Indonesia, she asked for clarification from the Committee of Experts on the use of that term. She further stated that the police had expeditiously investigated the case and held the perpetrators accountable, and that the trade union and the community organizations involved in the incident had also amicably and peacefully resolved the case. With regard to the strike at an Indonesian food packaging company on 2 July 2014, she indicated that, although the employer had tried to find a solution to the call by the workers for new minimum wages through a series of constructive engagements, there had been no sign of agreement between the parties, the situation had become increasingly hostile leading to violence, criminal acts and damage to the company’s property, and the company had therefore requested the police to address the situation using the least disruptive means possible, even as the situation continued to deteriorate, hampering public order. Concerning the allegations of violence against striking workers, acts of intimidation against union leaders, excessive violence and arrests in relation to demonstrations and police involvement in strike situations, she reaffirmed the Government’s commitment to ensuring freedom of speech in line with Act No. 9 of 1998. Moreover, the Indonesian National Police had established procedures to ensure that freedom of expression in public could be conducted in a peaceful manner. In particular, the Chief of Police Regulation No. 7 of 2012 on procedures for services, safeguarding and handling of expression in public spaces required demonstrators to submit early notification to the local police before a demonstration was carried out to allow them to provide sufficient security protection for the demonstrators and the surroundings. However, when demonstrators did not express their messages peacefully and created an imminent threat to public order, the police had to intervene and could take serious measures to ensure the safety and security of the public. Recognizing that capacity building of the police was a key factor in addressing demonstrations effectively, a series of training activities had been developed to enable the police to better handle demonstrations and strikes.

With regard to the request by the Committee of Experts to repeal or amend sections 160 and 335 of the Penal Code, she said that a comprehensive review of the whole text of the Penal Code was ongoing, but that it required careful and in-depth discussion and consultations at the national level. Concerning the right to organize of civil servants, she explained that freedom of association of civil servants was guaranteed by section 44 of Act No. 21 of 2000, but that there had been no proposal hitherto from civil servants to establish a union. Given the large number of civil servants in Indonesia and their significant role in the country, the Government would nevertheless remain open to discuss this initiative upon request from civil servants. Turning to the question of the right of workers’ organizations to organize their activities, she noted the observations of the Committee of Experts concerning the shortcomings in relation to the exercise of the right to strike, but emphasized that the procedure to implement the right to strike had been established in a comprehensive manner taking into account various views of the social partners. With regard to the request by the Committee of Experts to amend section 186 of the Manpower Act providing for criminal conviction for violations of certain provisions in relation to the right to strike, she indicated that sanctions had to be imposed to ensure the maintenance of public order and that the Manpower Act served as a reasonable restriction upon the right to strike in the interests of the public. It was therefore premature to amend the Manpower Act on this matter. With regard to the dissolution and suspension of organizations by administrative authority, she indicated that her Government fully supported the establishment of trade unions as part of its commitment to implement Convention No. 87. Since there were more than 6,000 trade unions registered, the Trade Union Act was important to ensure that they effectively worked in a unified manner in the best interests of the workers. In conclusion, she said that her Government was very supportive of the efforts of workers to exercise their rights, was ready to provide the necessary additional information on the issues addressed in the report of the Committee of Experts and would work untiringly with the social partners and the ILO to ensure the implementation of the Convention.

The Worker members recalled the important progress that had been made in the post-Suharto transition period in protecting freedom of association in Indonesia. Unfortunately, that progress had come to an abrupt end with the advent of the Widodo administration. In a deeply troubling trend also witnessed in other countries in the region, anti-union violence was once again on the rise for the sake of attracting investment. In addition, labour law continued to contain limitations contrary to the Convention, and trade union rights were rarely enforced in practice. Anti-union discrimination had led to a decline in unionization in sectors such as electronics, while others, such as the palm oil sector, had been kept virtually union free. A return to the 1980s style repression was to be feared. Among the numerous attacks on trade unionists, on 31 October 2013 an attack by paramilitary organizations had been carried out in Bekasi against a peaceful national demonstration demanding an increase in the minimum wage, protesting against outsourcing by state-owned enterprises and calling for the adoption of the Domestic Workers’ Bill. Instead of protecting the workers, police officers deployed to the site had not stopped the attacks, and had let 28 workers be injured by thugs armed with knives, iron rods and machetes. In November 2014, workers on strike over the minimum wage had been severely beaten by police in Bekasi, resulting in three of them having to go to hospital. Workers in Bataam had been dispersed by tear gas and water cannons that had been prepared in advance by the police. In Bintam, police had attacked and injured several workers who were meeting in front of the Lobam Industrial in order to march to the local government office. It should be recalled that the Committee on Freedom of Association had held that the rights of workers’ and employers’ organizations could only be exercised in a climate free from violence, pressure or threats of any kind against the leaders and members of those organizations, and that it was for governments to ensure that this principle was respected. The Committee on Freedom expected that the Government would make every effort to ensure that this principle was fully respected in future. The Committee on Freedom of Association had called for an independent judicial inquiry into these allegations, but no action had been taken. Indeed the repression had only continued. On 30 October 2015, a lawful and peaceful protest by over 35,000 workers in front of the Presidential Palace had been dispersed by the police with water cannons and tear gas. Some 23 workers had been arrested and detained for 30 hours, and they continued to face criminal charges under sections 216(1) and 218 of the Penal Code and had to report weekly to the police. Peaceful demonstrations in other parts of the country had similarly been disrupted. Heavily armed thugs of the Organisasi Kepemudaan were hired by employers’ organizations to intimidate workers in the Medan North Sumatra region. Seven labour activists from the North Sumatra Workers Alliance had been were attacked by thugs as they marched in Medan to protest against Government Regulation No. 78/2015 on wages and had suffered serious injuries as a result. In Jawa Timur, a member of the Federation of Indonesian Metalworkers Union (FSPMI) had been beaten unconscious by the police. On 24 November, the first day of the national strike, the police had physically attacked picketing workers. In addition to these acts of violence, the Government had unlawfully interfered with trade union activities through other means. In the days before the nationwide strike planned for 24–27 November 2015, the police had occupied the branch office of Confederation of Indonesian Trade Unions (KSPI) in North Jakarta and put KSPI and FSPMI branch offices under surveillance. Local authorities and employers in the Bekasi, Karawang and Batam regions had attempted to intimidate workers, claiming that the strike was illegal and that participants would face dismissal, although it should only be for an independent judicial body to determine the legality of a strike. On 25 November, the police had arrested and detained for eight hours five union leaders in the Bekasi Industrial Estates, West Java, arguing that it was prohibited to demonstrate in the industrial parts of the “National Vital Object Area”. In 2014, the Ministry of Industry had added 49 industrial firms and 14 industrial estates to the list of industry-sector national vital objects under Presidential Decree No. 63 of 2004 on the Security of National Vital Objects. Demonstrations were completely prohibited in sectors and zones covered by that Decree and met with fierce repression when they took place. In early 2016, rallies and demonstrations had been banned in several regions by local authorities. The President had ordered the National Intelligence Agency to investigate alleged foreign involvement in labour rallies and had on numerous occasions claimed that foreign support for workers was responsible for rallies and demonstrations. It should be recalled that trade unions had the right to join international organizations, including international trade unions.

The Worker members joined the Committee of Experts in calling on the Government to ensure that state security was not invoked to suppress the right to freedom of association, and that those, whether they were public officials or private individuals, who had committed acts of violence against trade unionists, were charged, tried and punished. They also echoed the call by the Committee of Experts to repeal or amend sections 160 and 335 of the Penal Code on “instigation” and “unpleasant acts” against employers so as to ensure that these provisions could not be misused as a pretext for the arbitrary arrest and detention of trade unionists. In addition, the Committee on Freedom of Association had also found that the Mass Organizations Act, adopted in 2013, included numerous broad and generally worded provisions that could curtail the exercise of freedom of association. The Government had yet to amend the Act, which had been challenged by several trade unions before the Constitutional Court. The Committee of Experts had previously called on the Government to adopt legislation guaranteeing the exercise of the right to organize of civil servants, pursuant to section 44 of the Trade Union Act No. 21 of 2000. The Government had yet to heed that call. The Committee of Experts had also repeatedly called on the Government to amend provisions allowing trade unions to be suspended or dissolved by administrative authorities. Finally, the Committee of Experts had repeatedly pointed out, legal provisions imposing obstacles to the exercise of the right to strike, including: (i) the manner of determining failure of negotiations; (ii) the issuance of back-to-work orders prior to the determination of the legality of the strike by an independent body; (iii) the extensive time period accorded for mediation/conciliation procedures; and (iv) criminal convictions for violation of certain provisions in relation to the right to strike. In that respect, the Worker members reaffirmed their view that the right to strike was an essential element of the right to freedom of association and was protected as such by Convention No. 87. The Government had to respect that right in law and practice. The Worker members therefore urged the Government to amend the legislation in accordance with the observations of the Committee of Experts and to ensure the full exercise of that right. Recent moves by the Government to ban or interfere in strikes and demonstrations were serious violations of the Convention and had to stop.

The Employer members welcomed the Government’s stated willingness to work with the social partners to apply the Convention. They recalled that Convention No. 87 provided for the right of workers and employers, without distinction whatsoever, to establish and join organizations of their own choosing, without previous authorization and subject only to the rules of the organizations concerned. Indonesia had ratified the Convention in 1998, and to date the Committee of Experts had made observations on eight occasions regarding the country’s application of the Convention. This was the Government’s first appearance before the Conference Committee in relation to Convention No. 87. They regretted that the Government had not replied to the serious concerns raised by the Committee of Experts regarding the allegations of the International Trade Union Confederation (ITUC) of violence against trade unionists, and they urged that full information in reply to these deeply troubling allegations be submitted to the Committee of Experts without delay.

Recalling that the Convention laid down guarantees against interference by the public authorities that would restrict the right to freedom of association, they noted the comments by the Committee of Experts referring to legislative restrictions on the right of civil servants to organize. In particular, they noted that the Committee of Experts had questioned why no organizations of civil servants had yet been established, despite the Government’s indication that section 44 of the Trade Union Act granted civil servants the right of association, and they called on the Government to provide full information on the circumstances relating to civil servants and their exercise of freedom of association. They observed that the Committee of Experts had raised concerns regarding sections 21 and 31 of the Act. Penalties for violations of these sections, as laid down in section 42 of the Act, included the suspension or revocation of trade union status and the loss of trade union rights. Recalling further that the Committee of Experts had requested the repeal of these provisions, and to ensure that the organizations affected by them enjoyed the right to appeal orders of suspension or dissolution to an independent judicial body, they requested the Government to provide full information on these matters. Finally, they encouraged the Government to seek technical assistance from the ILO to ensure that organizations affected by orders of suspension or dissolution by an administrative body enjoyed the right to appeal these orders to an independent judicial body.

The Worker member of Indonesia pointed to the sharp increase in inequality in Indonesia, despite its impressive economic record. The Gini coefficient – a measurement of inequality – had increased sharply in Indonesia over the past 15 years, climbing from 30 in 2000 to 41 in 2013, where it currently remained. While the ratification by Indonesia of Convention No. 87 represented a milestone and ended the system of trade union monopoly, in recent years Indonesia’s commitment to respecting workers’ rights had been moving in another direction. She therefore welcomed the fact that the Committee had chosen the present case for examination. She recalled the serious and continuous violations of the Convention, and particularly the attacks on peaceful strikes in the following cases: (a) the strike of 31 October 2013 in Bekasi District calling for a minimum wage raise, implementation of health insurance and the adoption of the domestic workers law. Police officers were said to have been deployed, but had done nothing to stop the violence committed apparently by paid gangs of youth resulting in the injury of 28 workers; (b) the strike in November 2014 for minimum wages, where striking workers had been severely beaten by police in the MM 2100 and Jababeka Industrial Areas, and five workers, members of the KSPI had also been detained: Budi Lahmudi, Jefri, Hadi Maryono, Nur Waluyo and Priyanto; (c) the strike of 24 June 2015 in front of a factory where workers had suddenly been attacked and blocked by people wearing the uniform of Pemuda Pancasila, while the police on the site had been passive and provided no protection for the attacked workers; (d) the strike on 30 October 2015 in front of the President’s palace, attended by over 35,000 workers to oppose Government Regulation No. 78/2015, which sought to link the statutory minimum wage to inflation and GDP growth rates only, and to demand a 22 per cent increase in the minimum wage for 2016. Despite the peaceful nature of the strike, the police were reported to have used bodily force, water cannons and tear gas to disperse the protesters with the resultant arrest of 23 workers, including the General Secretary of the KSPI, Muhamad Rusdi, who had subsequently been released on bail on 31 October 2015.

With regard to the right to organize of civil servants, she said that separate regulations to safeguard the protection of civil servants had as yet not been adopted consistent with section 44 of the Trade Union Act, as recalled by the Committee of Experts. She also referred to President Decree No. 63 of 2004 on the security of “national vital objects” and Ministry of Industry Decree No. 466/2014 on the national vital objects industrial sector, which were considered to represent an added layer of security for 49 national industrial firms and 14 industrial estates. Decree No. 466/2014 allowed: (a) companies or industrial areas to request assistance from the police and the military in the event of disruption and threat to national vital objects; and (b) the minister and head of agencies to determine “vital national objects” within their jurisdiction, and to issue a certificate to the companies and industrial areas concerned. In conclusion, she urged the Government to: (a) ensure that state security was not used to suppress the right to freedom of association, and to hold accountable public officials or private actors involved in acts of violence against trade unionists; (b) adopt an act protecting the rights of civil servants; and (c) revoke all decrees and regulations on “National Vital Object”.

The Government member of Cambodia, speaking on behalf of the Association of Southeast Asian Nations (ASEAN), noted the 2016 report of the Committee of Experts, in which the Government was requested to provide responses regarding its implementation of the Convention. He expressed full confidence in the Government to implement and protect the right of workers in accordance with its international obligations, and in line with its laws and regulations. He called on the Government of Indonesia to continue addressing labour issues through social dialogue and he welcomed its political will to implement the ILO’s fundamental Conventions, including Convention No. 87.

The Worker member of Japan emphasized that acts of violence against peacefully striking or demonstrating workers, whether by the police or by paramilitary organizations, were a grave violation of the principles of freedom of association. Although the comments of the Committee of Experts referred to acts of violence in 2013 and 2014, further such acts had also occurred in 2015, at times resulting in serious injury to the workers concerned. Unless concrete measures were taken by the Government to stop this violence, he feared that such acts would continue to occur. Although Indonesia had ratified the Convention, and indeed all eight of the ILO’s fundamental Conventions, ratification alone meant very little if the principles enshrined in those the Conventions were not fully realized in national law and practice. Noting that the Government was due to host the ILO’s 16th Asia and the Pacific Regional Meeting in December 2016 in Bali, he emphasized that it would behove the Government to fully apply all of the recommendations of the Committee of Experts so that concrete improvements could be duly noted and celebrated by the time of the meeting.

The Worker member of the Netherlands referred to Presidential Decree No. 63 of 2004 and Ministry of Industry Decree No. 466/2014, which provided the security forces, the police and the military with special powers to intervene directly in companies, at the request of employers. The decrees covered 49 enterprises, 14 industrial zones and 252 companies in the energy and mining sector. The objective of the Decrees was to make Indonesia more attractive for foreign companies and to protect them against threats, without specifying the nature of these threats. In the experience of trade unions, these perceived “threats” could include industrial action, peaceful demonstrations and even trade union meetings outside or inside the factories. Among the companies which could and did ask for protection under the National Vital Objects Decrees were multinational enterprises from Europe, Asia and the United States. In the 14 industrial areas where Indonesia’s export production took place, thousands of companies, mostly linked to networks in global supply chains, enjoyed special protection under these Decrees, while workers, particularly in global supply chains, found their freedom of association to be undermined. She considered that, if the ILO was serious about promoting decent work in global supply chains, which was the subject of a general discussion at the present session of the Conference, work to safeguard all the fundamental rights of workers, including those under Convention No. 87, should have priority. In conclusion, she called on the Government of Indonesia to comply with Convention No. 87 and to withdraw Presidential Decree No. 63 of 2004 and Ministry of Industry Decree No 466/2014.

An observer representing IndustriALL Global Union said that the enormous challenges already confronting Indonesian workers were made even more difficult and dangerous by Ministry of Industry Decree No. 466, which undermined all industrial action and threatened union organization by authorizing military intervention against workers. The implementation of the Decree had resulted in serious acts of violence against peacefully demonstrating workers since 2014–15, and had furthermore kept trade unions from reaching out to workers in industrial zones. The 2014 Decree reclassified and added a number of enterprises and industrial zones to the category of “national vital objects”. It also empowered the security forces, the police and the military to intervene directly in companies at the request of employers. The fact that the military now had special powers to intervene directly in industrial zones endangered the lives of workers. Moreover, the definition of “national vital objects” was intentionally kept flexible, so as to render it applicable even to companies in the paper sector, as had occurred in 2014. The new definition included any zone, location, building or business that carried the hopes of many, were of national importance, a source of State revenue or characterized as of strategic importance. Virtually all industrial zones could therefore fall within the scope of the Decree. She said that, according to Indonesia Corruption Watch (ICW), between 2001 and 2010 one of the country’s largest gold mining companies had paid US$79.1 million to the police to ensure the security of its operations. She mentioned several cases in which, under Decree No. 466, industrial action had been violently repressed: (1) a 2011 military intervention in a labour dispute in the PT Thiess enterprise, located in East Kalimantan; (2) the suppression of demonstrations in 2013 held by workers at Pindo Deli Pulp and Paper by the police and the army; and (3) the imposition by police in 2014 of a ban on strikes at the enterprise PT Freeport in Papua. She urged the Government to stop permitting the use of violence by the armed forces, and to immediately revoke all decrees and regulations relating to “National Vital Objects” which gravely restricted the exercise of freedom of association.

The Worker member of the Republic of Korea welcomed the comments of the Committee of Experts regarding the violations of the Convention. The actions of the management of the Cakung EPZ to the strikes of 2012 and 2013 were of particular concern, as the EPZ was dominated by Korean companies represented by the Korean Garment Association (KOGA) in Indonesia, which accounted for over 80 per cent of the facilities in the zone. The employers there had reacted by retaliating against unions in almost every factory, except those with management-backed unions, as from the very first national strike of 2012, in which 90,000 workers had participated from 98 companies in the Cakung EPZ. Consequently, a strategy had been developed by the KOGA, and other associations, representing human resource managers in each factory and managers of the Cakung EPZ. The strategy was aimed at reducing the influence of trade unions and included the following measures: (a) confiscating the member cards of several factory-level labour union officials to prohibit them from entering workplaces; (b) non-recognition of trade unions established after the 2012 national strike; (c) forcing workers to sign a letter of resignation as union members; and (d) criminalizing and union-busting by circulating photos of union leaders or workers who took part in demonstrations. More seriously, the Memorandum of Understanding (MoU) of January 2014, signed by the management of the Cakung EPZ and the Indonesian National Armed Forces for cooperation in security management was justified on grounds of state security, although it breached Law No. 34 of 2004 of the Indonesian National Armed Forces. Apparently, the MoU had been announced on 21 August 2014 through the Decree of the Minister of Industry No. 466 of 2014 which itself contradicted the Decree of the Minister of Industry No. 620 of 2012 on National Vital Objects in the Industrial Sector. The strike of 24–27 November 2015 had involved 35,000 workers from Jakarta protesting against the Government regulation to exclude trade unions from participation in minimum wage setting. Sixty-two workers from a Korean electronics company, one of the major suppliers to a Korean conglomerate, located in Jakarta had joined the strike. The workers in the Korean company had gone on strike according to the instructions of the FSPMI there had been proxy (?) bilateral negotiations with the management regarding the manner of the strike. Nevertheless, these 62 workers had been terminated on 5 December 2015. The union regarded this as unfair dismissal and had sent a letter to the management which had remained unanswered, and the managers of the company had used the police and the army to drive away the workers. In conclusion, he expressed support for the comments of the Committee of Experts and requests made by the Worker members.

An observer representing the Confederation of University Workers in the Americas (CONTUA), also speaking on behalf of Public Services International (PSI), referred to the comments made by the Committee of Experts concerning civil servants. For several years, the Committee of Experts had been asking the Government of Indonesia to adopt legislation guaranteeing the right to freedom of association for civil servants in compliance with the Convention. In 2003, Indonesia had stated that provisions on establishing a trade union for civil servants were included in section 30 of Act No. 43 of 1999 concerning basic staff provisions. In that regard, the Committee of Experts had taken the view that the Act did not govern the freedom of association of civil servants. In 2009, Indonesia had claimed that the right to freedom of association and of expression of civil servants was covered by the Civil Service Corps of Indonesia (KORPRI). On this point, the Committee of Experts had reminded the Government of the conclusion of the Committee on Freedom of Association in Case No. 1431 that “… KORPRI does not meet the requirements of the principle that all workers should have the right to form and join organisations of their own choosing to defend their occupational interests”. In 2011, the Government had reported that there had been no new developments with regard to the adoption of legislation and in 2012 it had stated that it was necessary for all parties to demonstrate political will. According to the latest observation made by the Committee of Experts, the Government had said that to date no proposal had been received from civil servants to establish a trade union. This showed that, over the years, the Government had tried to justify its failure to comply with the Convention in various ways: first, by trying to show that civil servants enjoyed the right to organize by virtue of current legislation; and later by attempting to transfer responsibility and plant the idea that the problem was the lack of initiative among the workers themselves. However, it was evident and obvious that the problem was the lack of political will to adopt legislation to guarantee that civil servants would benefit from the right to freedom of association and to create a favourable climate allowing that right to be exercised. Reference had been made to acts of violence, intimidation, arrests and repression against workers and union leaders, and the fact that the Act was used in a sectarian and abusive manner to persecute and silence workers. In that context, it was worrying that the Government had yet to act on the repeated requests of the Committee of Experts and failed to assume responsibility for addressing the systematic violation of trade union rights in Indonesia. The Government needed to take definite steps and stop simply making excuses to the Committee of Experts and the Conference Committee. On behalf of Indonesia’s civil service workers (affiliated to PSI), he called on the Government to avail itself of the technical assistance of the ILO to give effect to section 44 of the Trade Union Act, and in so doing, to adopt specific legislation granting freedom of association for public servants.

The Government representative thanked the members of the Committee for their comments. He affirmed that the Government would seriously address the realization of workers’ rights, and would do so while accommodating the concerns of the social partners, in the spirit of social dialogue. At the same time, the Government was committed to reducing inequality by enacting measures to promote the realization of the United Nations’ Sustainable Development Goals, particularly those relating to inequality. While appreciating the interventions calling for greater protection for protest action by workers, he stated that, even though freedom of association and assembly were upheld, it was important to conduct all protests in a peaceful and lawful manner. In this respect, the Government imposed reasonable restrictions on the holding of protest action, and when those restrictions were not respected, bold action was necessary to ensure the maintenance of public safety and security. When protesters damaged property, provoked violence and disrupted the flow of traffic, they would have to face the consequences of the law. He recalled that Case No. 3050 of the Committee on Freedom of Association, which had been referred to several times during the discussion, was now closed. The Government and the social partners had amicably resolved this matter. Moreover, the Government was committed to realizing all the issues raised concerning workers’ rights, and decent work more generally, through social dialogue and the participation of the social partners. ILO assistance in supporting the constituents would also be crucial to ensuring the full application of the Convention.

The Employer members once again emphasized the need for the Government to provide full information to the Committee of Experts so as to allow the latter to fully assess the country’s application of the Convention. With regard to the right to strike, they emphasized that the Government’s obligations in this respect must be read in the light of the statement by Governments on the right to strike, issued in March 2015.

The Worker members emphasized that income inequality in Indonesia was among the highest in the world, and that the gap between the rich and the poor had increased dramatically in the last decade. Over 50 per cent of formal sector workers were not receiving the minimum wage, hence the consequent organization and mobilization by workers to assert their rights. The Government should be working with workers and unions to address these serious concerns, rather than resorting to the use of tear gas and the baton. They expressed the sincere hope that the Government would acknowledge the gaps in the application of fundamental rights and would change its course of action immediately. They urged the Government to give effect to the requests by the Committee of Experts to: (a) amend or repeal sections 160 and 335 of the Penal Code to prohibit the arbitrary arrest and detention of trade unionists; (b) amend the Trade Union Act to ensure that trade unions could not be suspended or dissolved by administrative authorities but only by an independent judicial body, and only after all appeals had been exhausted; (c) adopt implementing legislation to ensure the protection of civil servants under the Convention; and (d) ensure that imprisonment or fines were not imposed against a worker for having carried out a peaceful strike, including by the amendment of the Manpower Act; (e) ensure the immediate establishment of independent judicial inquiries to determine responsibilities and punish those responsible for violence against trade unionists, whether they were private actors or public officials; (f) investigate allegations of police inaction in the face of violent acts and ensure that those who failed to carry out their official duty to protect workers from harm were penalized; (g) institute adequate measures to prevent the repetition of acts of violence, for example through education and training for the police, as well as police accountability; and (h) accept a direct contacts mission to develop a roadmap to implement these conclusions.

Conclusions

The Committee took note of the information provided by the Government representative and the discussion that followed on issues raised by the Committee of Experts.

The Committee expressed deep concern regarding numerous allegations of anti-union violence and limitations on the rights protected by the Convention by national legislation.

Taking into account the discussion of the case, the Committee 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 Government should also 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. The Government should 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 to develop a roadmap to implement these conclusions.

The Government representative said that he had taken note of the discussions and, while he would be reverting to his capital, he emphasized that the future promised better implementation of the Convention. Indonesia stood ready to cooperate with the Committee of Experts.

At a later stage, another Government representative expressed reservations on the conclusions adopted in the case of Indonesia. She deeply regretted that the Committee’s conclusions were based on one-sided allegations and had been drawn without taking into account the explanations of her Government and the actual discussion within the Committee. She called on the Committee to work in a more transparent and impartial manner.

Observation (CEACR) - adopted 2022, published 111st ILC session (2023)

The Committee takes note of the observations of the Confederation of Indonesian Trade Unions (KSPI), the Indonesia Trade Union Prosperity (KSBSI), and the International Trade Union Confederation (ITUC), received on 31 August, 2 and 6 September 2021, respectively, referring to the issues raised by the Committee below. The Committee also notes the ITUC allegation that Law No. 11 of 2020 or the Omnibus Law on Job Creation restricts the right to strike as it grants police officers significant discretion to imprison or fine union members for participating in or inviting others to participate in lawful strike action. The Committee understands that the Omnibus Law is undergoing a revision. The Committeerequests the Government to provide its comments on the ITUC allegations and to provide information on the revision of the law and its regulations.

Trade union rights and civil liberties. The Committee had previously requested the Government to engage in tripartite discussions to ensure the effective implementation of a code of conduct for workers’ demonstrations and industrial actions. While noting the Government’s indication that tripartite discussions on the procedures for handling lawful demonstrations and industrial actions were held, the Committee notes with concern the ITUC allegation of violence and arrests by the police in relation to a strike action by more than a million workers against the Omnibus Law. The ITUC denounces the use of water cannons and tear gas resulting in the injury of 32 members of the Federation of Indonesia Metalworkers in Bekasi; and the arrests of 183 workers in Southern Sumatra, 200 workers in Jakarta and a further ten workers for striking outside working hours. The Committee notes the Government’s indication that the strike action was anarchic and disrupted public peace and order. The Government adds that it had the right to act decisively against unlawful strikes carried out in violation of national law which established the Tripartite forum as the lawful forum for the discussion of labour policy issues. The Committee requests the Government to provide detailed information on the outcome of the tripartite discussions and on progress made toward any agreed measures toensure the effective implementation of a code of conduct for workers’ demonstrations and industrial actions. Recalling that in cases of strikes, the authorities should only resort to the use of force in exceptional circumstances and in situations of gravity where there is a serious threat of public disorder, and that such use of force must be proportionate to the circumstances, the Committee urges the Government to indicate all steps taken or envisaged to ensure the application of that principle.

The Committee had previously expected the Government to clarify that sections 160 and 335 of the Penal Code, respectively on “instigation” and “unpleasant acts” against employers, did not apply to abstract trade union activities. The Committee notes the Government’s indication that the Penal Code applies to all citizens without making any distinction between trade union and other activities. The Government adds that the Code is undergoing an amendment, taking into account the existing regulations. The Committee requests the Government to ensure that the amended Penal Code excludes lawful trade union activities from the scope of sections 160 and 335 of the Code. The Committee further requests the Government to provide information on all developments in this regard.

Article 2 of the Convention. Right to organize of civil servants. The Committee had previously expressed trust that the Government would adopt the implementing regulations to give effect to the right of civil servants to form and join organizations of their own choosing. The Committee notes the Government’s indication that the Trade Union Act applies to private sector workers while civil servants are covered by Law No. 5 of 2014 concerning Civil Servants. Moreover, the Constitution (Article 28 E) grants civil servants, in their capacity as citizens, the right to join any professional organization of their choosing. The Committee further notes that the Government refers to an obligation imposed on civil servants, depending on their status, to join respective professional organization of Functional Positions (JF) or KORPRI, a professional forum of which civil servants became members automatically upon their admission to service. The Committee observes that these organizations do not appear to be organizations in the sense provided for by the Convention or equivalent to organizations of workers of the private sector. The Committee once again requests the Government to take necessary measures to ensure the right of civil servants to form and join organizations of their own choosing, as is their right under the Convention, and to provide information on all steps taken to that end.

Article 3. Right of workers’ organizations to organize their activities. The Committee had previously requested the Government to provide information on the number of interest disputes referred to conciliation and mediations, and those referred to the industrial court without the consent of the parties. The Committee takes due note of the Government’s indication that there were 92 such cases reported between January and July 2021, with none being referred to the industrial court.

The Committee had previously invited the Government to discuss, within the framework of the National Tripartite Council, the effect of Presidential Decree No.63/2004 on the security of national vital objects (NVOs) and of the Ministry of Industry (MOI) Decree No. 466/2014, which enables companies or industrial areas to request assistance from the police and the miliary upon a disruption or threat to NVOs in their territory. The Committee notes the Government’s indication that the MOI determines NVOs, and the Presidential Decree extends the application of security measures against threats to NVOs to the public, including trade unions. The Government informs that the Constitution (Article 28E) and the Trade Union Act guarantee the right to associate, negotiate, and carry out trade union activities in companies that are part of NVOs. The Government informs that it will submit a proposal to discuss the impact of laws and regulations related to NVOs in the National Tripartite Cooperation Institution. Recalling it had previously noted claims by the KSPI and KSBSI that these Decrees are used to suppress the exercise of freedom of association, including provision of examples thereof, the Committee regrets that the application of the above-mentioned Decrees has not been yet discussed with the social partners. The Committee urges the Government to take all necessary steps to ensure that such a discussion takes place without further delay.

Article 4. Dissolution and suspension of organizations by the administrative authority. The Committee had previously requested the Government to indicate whether section 42 of the Trade Union Act could be used in conjunction with sections 21 and 31 to dissolve trade unions. The Committee takes due note of the Government’s indication that sections 42, 21 and 31 of the Act cannot be invoked in conjunction to dissolve trade unions.

Observation (CEACR) - adopted 2017, published 107th ILC session (2018)

The Committee takes note of the observations of the International Trade Union Confederation (ITUC) dated 1 September 2017 and the Confederation of Indonesian Trade Unions (KSPI) and the Indonesia Trade Union Prosperity (KSBSI) dated 30 August 2017 and the Government’s replies thereon. The Committee further notes the Government’s detailed reply to the 2016 ITUC observations, as well as to the 2016 observations from the International Organisation of Employers (IOE) and the Indonesian Chamber of Commerce and Industry (APINDO).

Trade union rights and civil liberties. The Committee recalls that its previous comments concerned police inaction in relation to violence during a demonstration in Bekasi in 2013. While observing the KSPI and KSBSI statement that it had not received a copy of the police investigation report, the Committee notes the Government’s reply that the report had been submitted to the complainant.

The Committee previously noted the recommendation of the direct contacts mission (DCM), which visited the country in October 2016, 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 disseminate information on the Guidelines, ensure their implementation and consider their review. The Committee notes that the KSPI and the KSBSI complain that the Government has yet to take any initiative in this regard, while the Government indicates that it has disseminated information about the Guidelines to trade unions, employers’ associations and local government. The Committee requests the Government to engage in tripartite discussion on the most effective manner of ensuring the effective implementation of a code of conduct for workers’ demonstrations and industrial action and to provide information on the progress made 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 from the Government’s report that the Bill on the Penal Code is currently under discussion in the House of Representatives. It further notes, however, the concerns raised by the KSPI and the KSBSI as to the continuing vague drafting of these provisions and the absence of tripartite consultation in this regard. In addition, the Committee notes that the KSPI and KSBSI provide an example of two federation leaders who were charged in June 2017 under these sections for questioning management policy, while the Government replies that this case was settled by the Provincial Manpower Office. The Committee expects that the clarifications necessary to ensure that these sections are not applied to abstract trade union activities will be made without delay, and again 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 the Government’s indication that Law No. 5 of 2014 on State Civil Servants, which stipulates that the civil servants organization is the Professional Corps of Indonesian State Civil Apparatuses (KPPASN), will be further promulgated in the implementing government regulation that is still being discussed through coordination meetings with the Ministry of State Apparatus Reform. The Government further expresses its gratitude for the offer of ILO technical assistance in this regard. The Committee underlines once again the importance of giving effect to the right of all civil servants to form and join the organization of their own choosing, and trusts that the implementing regulations under the 2000 Act will be adopted in the near future, taking advantage of the technical assistance that the Office may provide.

Article 3. Right of workers’ organizations to organize their activities. The Committee recalls its previous comments concerned a number of requirements in relation to the exercise of the right to strike and requested the Government to provide statistics on the number of interest disputes referred to conciliation, mediation and arbitration without the consent of the parties. The Committee notes the information provided by the Government that there were 100 reported interest disputes as of June and that these were resolved through mediation with the average period taken corresponding to that provided in Act No. 2. The Committee requests the Government to continue to provide information on the number of interest disputes referred to conciliation and mediation and in particular to specify 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.

The Committee further observes that the KSPI and the KSBSI continue to raise concerns about Presidential Decree No. 63 of 2004 on the security of national vital objects and Ministry of Industry Decree No. 466/2014 which enable companies or industrial areas to request assistance from the police and the military in the event of disruption and threat to national vital objects in their jurisdiction. The Committee notes the Government’s reiteration that these safeguards are not intended to restrict the exercise of freedom of association and that the placement of police aims to ensure protection and provide services to maintain security and public order and enable workers and employers to exercise their right to strike, demonstrate or lockout legally and peacefully. Observing that the KSPI and the KSBSI claim that these Decrees are used in practice to suppress the exercise of freedom of association and refer to examples in this regard, the Committee invites the Government to discuss the effect of these decrees within the framework of the National Tripartite Council and to provide information on the outcome.

Article 4. Dissolution and suspension of organizations by the administrative authority. In its previous comments, the Committee requested 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. The Committee welcomes the Government’s indication that delays taken for the notification of constitutional changes or receipt of foreign aid will not result in the dissolution of trade unions, and requests the Government to inform the Committee if section 42 should be used in conjunction with sections 21 and 31 for the dissolution of a union in the future.

Replies received to the issues raised in a direct request which do not give rise to further comments (CEACR) - adopted 2016, published 106th ILC session (2017)

The Committee notes the information provided by the Government, which answers the points raised in its previous direct request and has no further matters to raise in this regard.

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

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.

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

Article 3 of the Convention. Right of workers’ organizations to organize their activities. The Committee had previously noted that section 140(2) of Manpower Act No. 13 of 2003 requires that the written notification to be given by workers who intend to stage a strike indicate the ending time of the strike, and requested the Government to indicate whether workers and their organizations could call a strike for an indefinite period of time. The Committee notes the Government’s indication that there is no time limitation to conduct a strike, and that section 140 solely deals with the strike notification for the purposes of safeguarding production tools and company assets as well as guaranteeing the workers’ rights during the strike. Considering that workers and their organizations should be able to call a strike for an indefinite period if they so wish, the Committee requests the Government to clarify whether a strike would be deemed illegal: (i) if it is specified in the notification that the strike will be of indefinite duration; or (ii) if it is decided to continue the strike beyond the duration indicated in the notification.

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

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.]

Direct Request (CEACR) - adopted 2012, published 102nd ILC session (2013)

Article 3 of the Convention. Right of workers’ organizations to organize their activities and formulate their programmes without interference by the public authorities. Conditions for the exercise of the right to strike. The Committee noted that section 140(2) of Manpower Act No. 13 of 2003 requires that the written notification to be given by workers who intend to stage a strike indicate the ending time of the strike. The Committee considers that workers and their organizations should be able to call a strike for an indefinite period if they so wish. It notes that the Government’s response fails to address its request. The Committee therefore reiterates its request to the Government that it indicates whether workers and their organizations can call a strike for an indefinite period of time.

Observation (CEACR) - adopted 2012, published 102nd ILC session (2013)

The Committee notes the comments made by the International Organisation of Employers (IOE) on the right to strike, in a communication dated 29 August 2012, which are dealt with in the General Report of the Committee.

The Committee also notes the response of the Government to the comments made by the International Trade Union Confederation (ITUC) in 2011. However, the Government does not respond to certain allegations, in particular those relating to violence against striking workers and acts of intimidation against union leaders. The Committee further notes that, in its response to new comments made by the ITUC in a communication dated 31 July 2012, which relate to a number of matters already raised by the Committee, as well as violations of the Convention, the Government also fails to respond to serious allegations relating to excessive violence and arrests in relation to demonstrations and police involvement in strike situations, including in one case of recourse to firing that led to the death of two strikers. The Committee notes that the Government only reiterates in connection with the police role in strikes that it has been regulated in Kapolri Regulation No. 1/2005 (Guidelines on the conduct of the Indonesian Police to ensure law enforcement and order in industrial disputes). The Committee requests the Government to provide its observations on the abovementioned allegations. It further requests it to take all necessary measures to ensure that the use of excessive violence in trying to control demonstrations is avoided, that arrests are made only where serious violence or other criminal acts have been committed, and that the police are called in a strike situation only where there is a genuine and imminent threat to public order.

Trade union rights and civil liberties. In its previous comments, the Committee 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”, so as to ensure that these provisions cannot be used abusively as a pretext for the arbitrary arrest and detention of trade unionists. The Committee notes that the Government indicates in its report that progress on the amendment of the Code is still under discussion between ministries. The Committee reiterates its hope that, in the framework of the review of the Penal Code, sections 160 and 335 will be repealed or amended, and requests the Government to provide information on the developments in this regard.

Article 2 of the Convention. Right to organize of civil servants. In its previous comments, the Committee expressed the hope that the Government will adopt an act guaranteeing the exercise of the right to organize to civil servants, pursuant to section 4 of Act No. 21 of 2000, 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 full conformity with the Convention. The Committee notes that the Government reiterates that there is no prohibition for civil servants to form unions and that the absence of specific legislation on the right to organize of civil servants is the result of the fact that political will from all parties is still needed. In this context, the Committee requests the Government to indicate in its next report any development in this regard.

Right to organize of employers. In its previous comments, the Committee requested the Government to specify whether employers’ organizations could be established independently of the Indonesian Chamber of Commerce and Industry (KADIN). The Committee notes that the Government reiterates that the Indonesian Employers’ Association (APINDO), which is affiliated to KADIN, is an independent employers’ organization. The Committee notes that the Government adds that there is no restriction in Act No. 1/1987 creating KADIN to the possibility of forming other employers’ organizations.

Article 3. Right of workers’ organizations to organize their activities and formulate their programmes. In its previous comments, the Committee made a number of requests to the Government in relation to the conditions for the exercise of the right to strike, in particular in relation to: the conditions for the determination of failed negotiations (section 4 of Ministerial Decree No. KEP.232/MEN/2003); the conditions for the issuance of back-to-work orders (section 6(2) and (3) of Ministerial Decree No. KEP.232/MEN/2003); the extensive time period accorded to mediation/conciliation procedures (Industrial Relations Dispute Settlement Act No. 2 of 2004); and the imposition of criminal conviction for violation of certain provisions in relation to the right to strike (section 186 of the Manpower Act). The Committee notes that the Government indicates in its report that a review of Ministerial Decree No. KEP.232/MEN/2003 (concerning section 4, the Government indicates that, in practice, the determination of failed negotiations is left to the parties) and of Act No. 2 of 2004 is under way, in consultation with the relevant stakeholders. It also notes that the Government indicates, in relation to section 186 of the Manpower Act, that it has not yet considered amending it. The Committee expresses the firm hope that, in the context of the review of the legislation, its previous comments will be taken into account so as to bring the legislation into conformity with the principles of freedom of association. It requests the Government to provide information in its next report on steps taken in this regard.

Article 4. Dissolution and suspension of organizations by administrative authority. In its previous comments, the Committee had noted that if trade union officials violate either section 21 or 31 of Trade Union/Labour Union Act No. 21 of 2000 – by either failing to inform the Government of any changes in the union’s constitution or by-laws within 30 days or failing to report any financial assistance coming from overseas sources – serious sanctions can be imposed under section 42 of the Trade Union/Labour Union Act, namely, the revocation and loss of trade union rights or suspension. Considering that such sanctions are disproportionate, the Committee requested the Government to indicate the measures taken or contemplated so as to repeal the reference to sections 21 and 31 in section 42 of the Trade Union/Labour Union Act. The Committee also requested the Government to indicate the measures taken or contemplated so as to ensure that organizations affected by measures of dissolution or suspension by the administrative authority have a right of appeal to an independent and impartial judicial body, and that such administrative decisions do not take effect until that body issues a final decision. Noting that the Government reiterates that it is conducting a review of Trade Union/Labour Union Act No. 21 of 2000, the Committee expresses the hope that, in the framework of this review, the Government will fully take into account the Committee’s comments. It requests the Government to provide information on developments in this regard.

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 points in a request addressed directly to the Government.

Direct Request (CEACR) - adopted 2011, published 101st ILC session (2012)

Article 3. Right of workers’ organizations to organize their activities and formulate their programmes without interference by the public authorities. Conditions for the exercise of the right to strike. The Committee notes that section 140(2) of the Manpower Act No. 13 of 2003 requires that the written notification to be given by workers who intend to stage a strike indicates the ending time of the strike. The Committee considers that workers and their organizations should be able to call a strike for an indefinite period if they so wish. The Committee requests the Government to indicate whether workers and their organizations can call a strike for an indefinite period of time.

Observation (CEACR) - adopted 2011, published 101st ILC session (2012)

The Committee notes the response of the Government to the comments made by the International Trade Union Confederation (ITUC) in 2009. It also notes that in a communication dated 4 August 2011, the ITUC submits new comments which relate to a number of matters already raised by the Committee, as well as violations of the Convention, in particular violence against striking workers and acts of intimidation against union leaders. The Committee requests the Government to provide its observations thereon.

Trade union rights and civil liberties. In its previous comments, recalling that legitimate trade union activities should not be used as a pretext for arbitrary arrest or detention, the Committee requested the Government to provide information on measures taken, including specific instructions given to the police, so as to ensure that the danger of excessive violence in trying to control demonstrations is avoided, that arrests are made only where serious violence or other criminal acts have been committed, and that the police are called in a strike situation only where there is a genuine and imminent threat to public order. It further 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”, so as to ensure that these provisions cannot be used abusively as a pretext for the arbitrary arrest and detention of trade unionists. The Committee notes that the Government indicates in its report that, in the case of a legal strike, it is only in case of anarchy that the police have the right to perform actions according to the legislation. The Government further indicates that in the absence of anarchy the police have no right of action (arrest or detention) even if the strike is unlawful. The Committee also notes the Government’s indication that it is conducting a review of the Penal Code. The Committee further notes that the allegations contained in the comments submitted by ITUC indicate that excessive violence and arrests in relation to demonstrations and police involvement in strike situations occurred in the country in 2010. In this context, the Committee hopes that, in the framework of the review of the Penal Code, sections 160 and 335 will be repealed or amended. The Committee requests the Government to provide information on the developments in this regard, as well as on other measures taken, including specific instructions given to the police, so as to ensure that the use of excessive power in trying to control demonstrations is avoided, that arrests are made only where serious violence or other criminal acts have been committed, and that the police are called in a strike situation only where there is a genuine and imminent threat to public order.

Article 2 of the Convention. Right to organize of civil servants. In its previous comments, the Committee expressed the hope that the Government would adopt an Act guaranteeing the exercise of the right to organize to civil servants, pursuant to section 4 of Act No. 21 of 2000, 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 full conformity with the Convention. The Committee notes the Government’s indication that there are no developments with regard to the adoption of such a regulation, but that, in practice, both private and public school teachers formed the Teachers’ Association of the Republic of Indonesia (PGRI). The Committee reiterates its hope that the Government will adopt an Act guaranteeing the exercise of the right to organize to all civil servants, pursuant to section 4 of Act No. 21 of 2000, and requests the Government to indicate in its next report any progress made in this regard.

Right to organize of employers. In its previous comments, the Committee requested the Government to specify whether employers’ organizations could be established independently of the Indonesian Chamber of Commerce and Industry (KADIN). The Committee notes that the Government indicates that, while there is no organization outside KADIN, no stipulation in regulation proscribes employers from establishing organizations other than KADIN, which is the parent organization of employers’ organizations. The Government also indicates that APINDO (Indonesian Employers Association), which is affiliated to KADIN, is the employers’ organization which is given the authority in the field of industrial relations. The Committee recalls that the designation by its name of a workers’ or employers’ organization in the legislation for the purpose of consultation or other benefits should be avoided in order to ensure the free exercise of freedom of association and that it would be preferable to make reference to the most representative organization of the concerned sector. The Committee intends to address this issue in depth once Act No. 1/1987 concerning KADIN is fully translated into an ILO official language.

Article 3. Right of workers’ organizations to organize their activities and formulate their programmes without interference by the public authorities. Conditions for the exercise of the right to strike. In its previous comments, the Committee requested the Government to take the necessary measures to amend section 4 of Ministerial Decree No. KEP.232/MEN/2003, so that a finding as to whether negotiations have failed, which is a condition for the lawful staging of strikes, can be made either by an independent body or be left to the unilateral determination of the parties to the dispute. The Committee notes the Government’s comments that section 4 of Ministerial Decree No. KEP.232/MEN/2003 is in accordance with the conditions of employment in Indonesia and that it did not see any difficulties in performing the procedure on strikes. The Committee once again requests the Government to amend section 4 of Ministerial Decree No. KEP.232/MEN/2003, so that a finding as to whether negotiations have failed can be made either by an independent body or be left to the unilateral determination of the parties to the dispute.

Exhaustion of mediation/conciliation procedures. The Committee had noted that the time period accorded to mediation/conciliation procedures, as provided for in the Industrial Relations Dispute Settlement Act No. 2 of 2004, could be more than 60 days. It had requested the Government to ensure that this time period would be reduced if the exhaustion of mediation/conciliation was a condition for the lawful exercise of the right to strike. The Committee recalls that conciliation, mediation and voluntary arbitration should have the sole purpose of facilitating bargaining and should not be so complex or slow that a lawful strike becomes impossible in practice or loses its effectiveness. Noting the Government’s information that it is conducting a review of Act No. 2 of 2004 and that currently many strikes have occurred without waiting on the exhaustion of these procedures, the Committee requests the Government to provide information on developments in this regard.

Objectives of strikes. In its previous comments, the Committee requested the Government to take the necessary steps so as to allow trade union federations and confederations to engage in industrial action linked to questions of general social and economic policy. The Committee notes that the Government indicates that it has not made arrangements concerning strikes related to issues of social and economic policies and that it believes that such strikes are categorized as demonstrations regulated in Act No. 9 of 1998 on Freedom of Expression in Public. The Committee recalls that organizations responsible for defending workers’ socio-economic and occupational interests should, in principle, be able to use strike action to support their position in the search for solutions to problems posed to major social and economic policy trends which have a direct impact on their members and on workers in general, in particular as regards employment, social protection and the standard of living. The Committee requests the Government provide with its next report a copy of Act No. 9 of 1998.

Restrictions on the right to strike in the railway service. In its previous comments, the Committee requested the Government to indicate steps taken or contemplated to ensure that the only railway workers encompassed by section 139 of Manpower Act No. 13 of 2003, and so with a limited right to strike, are railway intersection workers. The Committee notes that the Government confirms that the explanatory note on section 139 of the Manpower Act No. 13 of 2003 provides that only railway intersection officers are included among the workers that relate to public safety since they have specific duties which differ from those of other railway workers.

Sanctions for strike action. In its previous comments, the Committee requested the Government to take the necessary measures in order to amend its legislation to ensure that no penal sanction should be imposed against a worker for having carried out a peaceful strike and therefore measures of imprisonment should not be imposed on any account. Such sanctions could be envisaged only where during a strike, violence against persons or property or other serious infringements of rights have been committed, and can be imposed pursuant to legislation punishing such acts. Nevertheless, even in the absence of violence, if the strike modalities had the effect of making the strike illegitimate, proportionate disciplinary sanctions may be imposed against strikers. The Committee notes that section 186 of the Manpower Act regulates criminal conviction for violation of sections 137 and 138(1) of the Manpower Act which make provisions in relation to the right to strike. The Committee requests the Government to take the necessary measures to amend section 186 of the Manpower Act so as to bring it into conformity with the above principle in accordance with the Convention.

Recalling that section 6(2) and (3) of Ministerial Decree No. KEP.232/MEN/2003 results in the situation that striking workers were considered to resign by virtue of not having responded to back-to-work orders from employers, prior to a finding by an independent body that the strike in question is illegal, the Committee requested the Government to amend this section to ensure that employers can only issue back-to-work orders to workers after an independent body has determined that the strike is illegal. The Committee notes that the Government indicates that it is conducting a review of Ministerial Decree No. KEP.232/MEN/2003. The Committee requests the Government, in the framework of this review, to ensure that section 6(2) and (3) of Ministerial Decree No. KEP.232/MEN/2003 is amended to ensure that employers can only issue back-to-work orders to workers after an independent body has determined that the strike is illegal. The Committee requests the Government to provide information on developments in this regard.

Article 4. Dissolution and suspension of organizations by administrative authority. In its previous comments, the Committee had noted that if trade union officials violate either sections 21 or 31 of the Trade Union/Labour Union Act No. 21 of 2000 – by either failing to inform the Government of any changes in the union’s constitution or by laws within 30 days or failing to report any financial assistance coming from overseas sources – serious sanctions can be imposed under section 42 of the Trade Union/Labour Union Act, namely, the revocation and loss of trade union rights or suspension. Considering that such sanctions are disproportionate, the Committee requested the Government to indicate the measures taken or contemplated so as to repeal the reference to sections 21 and 31 in section 42 of the Trade Union/Labour Union Act. The Committee also requested the Government to indicate the measures taken or contemplated so as to ensure that organizations affected by measures of dissolution or suspension by the administrative authority have a right of appeal to an independent and impartial judicial body, and that such administrative decisions do not take effect until that body issues a final decision. Noting the Government’s indication that it is conducting a review of the Trade Union/Labour Union Act No. 21 of 2000, the Committee expresses the hope that, in the framework of this review, the Government will fully take into account the Committee’s comments. It requests the Government to provide information on developments in this regard.

The Committee reminds the Government that it may avail itself of the technical assistance of the Office, if it so wishes, in relation to the issues raised in these comments.

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

Observation (CEACR) - adopted 2009, published 99th ILC session (2010)

The Committee notes the comments made by the International Trade Union Confederation (ITUC) in a communication dated 26 August 2009 with regard to arrests and violence by the police, dismissals and acts of retaliation against strike actions. The Committee requests the Government to provide its observations thereon.

Trade union rights and civil liberties. In its previous comments, concerning allegations of excessive violence and arrests in relation to demonstrations and police involvement in strike situations, including the interrogation of trade union leaders pursuant to an old colonial law prohibiting vague and unspecified “unpleasant acts” against employers, the Committee requested the Government to continue to provide information on measures taken, including specific instructions given to the police so as to ensure that the danger of excessive violence in trying to control demonstrations is avoided, that arrests are made only where serious violence or other criminal acts have been committed, and that the police are called in a strike situation only where there is a genuine and imminent threat to public order.

In this regard, the Committee notes the conclusions and recommendations of the Committee on Freedom of Association in relation to Case No. 2585 (see 353rd Report, March 2009, paragraphs 120–123) concerning allegations of human rights abuses and notes that the Committee on Freedom of Association trusted that the Government would: (i) issue appropriate instructions to prevent the danger of trade unionists being arrested by the police for normal trade union activities; (ii) repeal or amend sections 160 and 335 of the Criminal Code on “instigation” and “unpleasant acts” so as to ensure that these provisions cannot be used abusively as a pretext for the arbitrary arrest and detention of trade unionists; and (iii) continue to take all the necessary measures to educate the police in relation to its action in industrial relations contexts.

The Committee notes the Government’s statement that the police role in strikes has been established in Kapolri Regulation No. 1/2005. Recalling that legitimate trade union activities should not be used as a pretext for arbitrary arrest or detention, the Committee requests the Government to provide the information requested in its previous observation and to take the necessary measures to repeal or amend sections 160 and 335 of the Criminal Code.

Right to organize of civil servants. In its previous comments, the Committee requested the Government to take the necessary steps to guarantee the exercise of the right to organize to civil servants, and to indicate the manner in which civil servants organize in practice, including statistics on the number of civil servants’ organizations at various levels. The Committee notes the Government’s indication that it has not specifically regulated the right to organize for civil servants but that their right to organize and express opinions is covered by the Corps of Indonesian Civil Servants (KORPRI), which is a neutral organization that does not take sides for a certain political party. Recalling the conclusions of the Committee of Freedom of Association in Case No. 1431 (see 265th Report, May 1989, paragraphs 104–137) that “KORPRI does not meet the requirements of the principle that all workers should have the right to form and join organizations of their own choosing to defend their occupations’ interests”, the Committee expresses the hope that the Government will adopt an Act guaranteeing the exercise of the right to organize to civil servants, pursuant to section 4 of Act No. 21 of 2000, 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 full conformity with the Convention and requests the Government to indicate progress made in this regard.

Right to organize of employers. The Committee had requested that the Government provide a copy of Act No. 1 of 1987, as well as the internal regulation of the Indonesian Chamber of Commerce and Industry (KADIN), and specify whether other employers’ organizations could be established independently of the KADIN. The Committee notes Act No. 1/1987 transmitted by the Government and its indication that there is no stipulation in regulation proscribing employers from establishing organizations other than the KADIN. The Committee will examine Act No. 1/1987 once it is translated and requests the Government to provide information on any other employers’ organizations that exist in addition to the KADIN.

Conditions for the exercise of the right to strike. In its previous comments, the Committee requested the Government to take the necessary measures to amend section 4 of Ministerial Decree No. KEP.232/MEN/2003 so that a finding as to whether negotiations have failed, which is a condition for the lawful staging of strikes, can be made either by an independent body or be left to the unilateral determination of the parties to the dispute. The Committee notes the Government’s comments that section 4 of Ministerial Decree No. KEP.232/MEN/2003 has not been amended because it is not an obstacle to the execution of strikes, as is illustrated by the many strikes that have taken place. The Government explains that the purpose of the Ministerial Decree is not to prohibit strike actions, but to regulate the procedure for strikes according to section 140 of Act No. 13/2003. The Committee notes the Government’s statement that trade unions and workers themselves could determine when strikes would start and end and that, thus, strikes will be carried out according to their expectations.

Noting that the Government did not comment in detail on the legislative conditions for the calling of a strike, the Committee once again recalls that the conditions stipulated in the law for the exercise of the right to strike should not be such that the exercise of this right becomes very difficult or even impossible in practice. The Committee once again requests the Government to take steps to ensure that the legislation is in conformity with the Convention by repealing or amending the various conditions included in the strike procedure set out in Ministerial Decree No. KEP.232/MEN/2003.

Exhaustion of mediation/conciliation procedures. The Committee had requested the Government to take the necessary measures to amend the legislation to ensure that mediation/conciliation proceedings, that currently took more than 60 days, did not operate as a precondition for the lawful exercise of the right to strike. The Committee notes the Government’s information that it has not amended sections 3(2), 4(4), 15 and 25 of the Industrial Relations Dispute Settlement Act No. 2 of 2004. Recalling that a requirement to exhaust procedures that extends beyond 60 working days (three months), as a precondition for a lawful strike, would render the exercise of the right to strike very difficult or even impossible in practice, the Committee once again requests the Government to indicate measures taken or contemplated to amend sections 3(2), 4(4), 15 and 25 of the Industrial Relations Dispute Settlement Act No. 2 of 2004 in a way that: (i) reduces the time period accorded to mediation/conciliation proceedings in cases where the exhaustion of mediation/conciliation constitutes a condition for the lawful exercise of the right to strike; or (ii) ensures that the exhaustion of mediation/conciliation is not a precondition for the lawful exercise of the right to strike.

Objectives of strikes. In its previous comments, the Committee requested the Government to take the necessary steps so as to allow trade union federations and confederations to engage in industrial action linked to questions of general social and economic policy. The Committee notes the comments of the Government that strikes can be conducted as long as they are related to employment matters as regulated by rules and regulations concerning employment. The Committee notes once again that this appears to exclude the possibility of staging strikes on general social and economic policy, and recalls that organizations responsible for defending workers’ socio-economic and occupational interests should, in principle, be able to use strike action to support their position in the search for solutions to problems posed to major social and economic policy trends which have a direct impact on their members and on workers in general, in particular as regards employment, social protection and the standard of living. The Committee requests the Government to indicate in its next report any measures taken or contemplated to ensure that trade union federations and confederations may engage in industrial action linked to questions of general social and economic policy.

Restrictions on the right to strike in the railway service. In its previous comments, the Committee requested the Government to take the necessary measures so as to ensure that railway service workers may fully exercise the right to strike without penalty. The Committee notes the Government’s comment that section 139 of Manpower Act No. 13 is not only related to railway workers but also to workers in hospitals, fire brigades, watergate controllers, air traffic control and flare men, as strikes of these workers would endanger human safety. Recalling once again that railway services generally cannot be considered as an essential service, the Committee requests the Government to indicate steps taken or contemplated to ensure that the only railway workers encompassed by section 139 of Manpower Act No. 13, and so with a limited right to strike, are railway intersection workers.

Sanctions for strike action. The Committee requested the Government to take the necessary measures to ensure that sanctions for illegal strike action were not disproportionate to the seriousness of the offence. The Committee notes the Government’s comment that section 185 of the Manpower Act does not regulate criminal conviction for violation of section 139 of the Manpower Act but applies only to specified sections. The Committee recalls that no penal sanction should be imposed against a worker for having carried out a peaceful strike and therefore measures of imprisonment should not be imposed on any account. Such sanctions could be envisaged only where during a strike, violence against persons or property or other serious infringements of rights have been committed, and can be imposed pursuant to legislation punishing such acts. Nevertheless, even in the absence of violence, if the strike modalities had the effect of making the strike illegitimate, proportionate disciplinary sanctions may be imposed against strikers. The Committee therefore requests the Government to take the necessary measures in order to amend its legislation so as to bring it into conformity with the principle above.

The Committee requested the Government to take the necessary measures to ensure that striking workers were not considered to resign by virtue of not having responded to back-to-work orders from employers, prior to a finding by an independent body that the strike in question is illegal. The Committee notes the information provided by the Government that the implementation of Ministerial Decree No. KEP.232/MEN/2003 relating to back-to-work orders allows for recourse to the industrial cooperation court, which avoids any possible arbitrariness on the part of employers. Recalling that the practice in the Ministerial Decree results in the situation that workers run the risk of dismissal while the legality of a strike is not settled, the Committee once again requests the Government to amend section 6(2) and (3) of Ministerial Decree No. KEP.232/MEN/2003 to ensure that employers can only issue back-to-work orders to workers after an independent body has determined that the strike is illegal.

Dissolution and suspension of organizations by administrative authority. In its previous comments, the Committee had requested the Government to take the necessary steps so as to provide for means other than loss or suspension of trade union rights for delays in notification of changes in the union’s constitution or by-laws, or failure to report overseas financial assistance. The Committee notes the Government’s indication that it has no plans to repeal sections 21 and 31 of the Trade Union/Labour Union Act (Law No. 21 of 2000) in the context of complexities in drafting and amending employment legislation. Recalling that the sanction of suspension for failure to report changes in a union’s constitution or by-laws (pursuant to sections 21 and 42 of the Act) is clearly disproportionate and that the result of sections 31(1) and 42 is tantamount to requiring previous authorization for the receipt of overseas funds, the Committee once again requests the Government to indicate in its next report the measures taken or contemplated so as to repeal the reference to sections 21 and 31 in section 42 of the Trade Union/Labour Union Act.

The Committee had requested the Government to take the necessary steps to ensure that administrative dissolution or suspension of trade unions do not take effect until a final decision has been handed down by the Administrative Court in case of appeal. The Committee notes the information provided by the Government that, if trade unions, federations or confederations do not fulfil the minimal requirements which are regulated in sections 5(2), 6(2) and 7(2) of Law No. 21 of 2000, they will not have the right to be recorded by the governmental institution responsible for manpower. The Committee further notes the Government’s statement that, by not fulfilling the minimal requirements, there is no base to initiate a case to the State Administrative Court (PTUN). The Committee once again recalls that measures of dissolution and suspension of trade unions by administrative authority involve serious risk of interference in the very existence of organizations and should therefore be accompanied by all the necessary guarantees, in particular due judicial safeguards, to avoid the risk of arbitrary action. The Committee once again requests the Government to indicate in its next report the measures taken or contemplated so as to ensure that organizations affected by measures of dissolution or suspension by the administrative authority have a right of appeal to an independent and impartial judicial body, and that such administrative decisions do not take effect until that body issues a final decision.

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

Observation (CEACR) - adopted 2007, published 97th ILC session (2008)

The Committee takes note of the information contained in the Government’s report as well as its reply to the comments made by the International Confederation of Free Trade Unions (ICFTU, now ITUC – International Trade Union Confederation) in 2006. The Committee notes the comments made by the ITUC in a communication dated 27 August 2007 with regard to police violence, dismissals and acts of retaliation against strikers. The Committee requests the Government to provide its observations thereon.

The Committee takes note of the entry into force of the Industrial Relations Dispute Settlement Act No. 2 of 2004.

1. Civil liberties. The Committee’s previous comments concerned the issuance of Guidance on the Conduct of Indonesian Police concerning Law Enforcement and Order in Industrial Relations Disputes with ILO technical assistance, and the need to ensure its practical implementation.

The Committee notes that in its 2006 comments, the ICFTU refers to continuing police interference in industrial disputes in order to break up strikes in various companies and the interrogation of trade union leaders on the basis of an old colonial law prohibiting vague and unspecified “unpleasant acts” against employers.

The Committee notes that the Government indicates that the cases to which the ICFTU refers have been settled by the parties and adds that pursuant to the issuance of the Guidance, the police are allowed to be present during the settlement of industrial disputes but their role is to remain at a distance strictly for security purposes. The Government states that the police no longer play any part in the settlement of the disputes.

The Committee asks the Government to continue to provide information on measures taken, including the specific instructions given to the police so as to ensure that the danger of excessive violence in trying to control demonstrations is avoided, that arrests are made only where serious violence or other criminal acts have been committed, and that the police are called in a strike situation only where there is a genuine and imminent threat to public order.

2. Right to organize of civil servants. In previous comments, the Committee had requested the Government to specify any act or regulation ensuring the implementation of the right to organize of civil servants pursuant to section 44 of Act No. 21 of 2000, which proclaims that civil servants shall enjoy freedom of association and that the implementation of this right shall be regulated in a separate Act. The Committee notes that the Government’s report does not contain any information in this regard. In previous communications the Government had indicated that such Act had not yet been adopted. The Committee requests the Government to indicate in its next report the steps taken for the adoption of an Act guaranteeing the exercise of the right to organize to civil servants pursuant to section 4 of Act No. 21 of 2000, and to indicate the manner in which civil servants organize in practice, while the adoption of legislation is pending, including statistics on the number of civil servants’ organizations at various levels.

3. Right to organize of employers. The Committee had requested the Government to provide a copy of any rulings made concerning the right to organize of employers pursuant to section 105(1) of Manpower Act No. 13 of 2003, which grants this right to employers and adds that “rulings concerning entrepreneurs’ organizations shall be determined and specified in accordance with valid statutory legislation”. The Committee notes that the Government’s report does not contain any information in this regard. In previous communications, the Government had indicated that employers’ organizations are regulated by Act No. 1 of 1987, concerning the Chamber of Commerce and Industry (KADIN). The basic internal regulation of KADIN states that APINDO (the main employers’ association) is a branch of KADIN dealing with industrial relations and labour issues. The Committee requests the Government to provide a copy of Act No. 1 of 1987, as well as the internal regulation of KADIN, in its next report and to specify whether in general, other employers’ organizations can be established independently of the KADIN.

4. Conditions for the exercise of the right to strike. In previous comments, the Committee had noted that for a strike to be considered legal it must be carried out subsequent to “failed negotiations” (section 3 of Ministerial Decree No. KEP. 232/MEN/2003) and that negotiations shall be considered failed only if both sides make a declaration to this effect in the negotiation minutes (section 4 of the abovementioned Decree). Noting from the Government’s report that the right to strike is a basic right that should be carried out legally, orderly and peacefully as a consequence of failed negotiations, the Committee once again recalls that the conditions stipulated in the law for the exercise of the right to strike should not be such that the exercise of this right becomes very difficult or even impossible in practice. The Committee requests the Government to indicate in its next report the measures taken or contemplated to amend section 4 of Ministerial Decree No. KEP. 232/MEN/2003 so that a finding as to whether negotiations have failed, which is a condition for the lawful staging of strikes, can be made either by an independent body or be left to the unilateral determination of the parties to the dispute.

5. The Committee further notes that the ICFTU indicates that the law contains further restrictive conditions for the exercise of the right to strike; for instance, a requirement to indicate the ending time of the strike before its commencement. Noting that the Government has not responded to these comments, the Committee once again requests the Government to provide its observations in this respect.

6. Exhaustion of mediation/conciliation procedures. The Committee notes from the comments made by the ICFTU that the Industrial Relations Dispute Settlement Act No. 2 of 2004 imposes as a precondition for the lawful staging of strikes, a lengthy mediation procedure. The Committee notes from the Government’s reply to the ICFTU comments that the strike is a basic right that should be carried out legally, orderly and peacefully as a consequence of failed negotiations, and as long as these conditions are fulfilled, the worker does not break the law. The Committee observes that sections 3(2), 4(4), 15 and 25 of the Industrial Relations Dispute Settlement Act No. 2 of 2004, appear to establish: (i) an initial period of 30 working days during which an attempt should be made to settle disputes through bipartite negotiations (section 3(2)); (ii) an (unspecified) time period during which the parties are invited to file their dispute to the Manpower Office and select either conciliation or arbitration, and if they fail to select either one, seven working days within which the Manpower Office will transfer their dispute to mediation (section 4(4)); (iii) an additional 30 working days reserved to mediation (section 15); (iv) 30 working days reserved to conciliation (section 25); or (v) if mediation/conciliation fails, sections 5 and 14 provide that one of the parties may refer the dispute to the Industrial Relations Court for arbitration (see in this regard, the Committee’s comments under Convention No. 98).

The Committee notes that the text of Act No. 2 of 2004 does not explicitly indicate whether the parties may stage strikes while mediation/conciliation is under way or whether they should wait for these lengthy procedures to be concluded before they may lawfully stage industrial action. The Committee notes that the requirement to exhaust procedures extending beyond 60 working days (three months), as a precondition for a strike to be staged lawfully, would render the exercise of the right to strike very difficult or even impossible in practice. The Committee requests the Government to indicate measures taken or contemplated to amend sections 3(2), 4(4), 15 and 25 of the Industrial Relations Dispute Settlement Act No. 2 of 2004 in a way that: (i) reduces the time period accorded to mediation/conciliation proceedings in cases where the exhaustion of mediation/conciliation constitutes a condition for the lawful exercise of the right to strike; or (ii) ensures that the exhaustion of mediation/conciliation is not a precondition for the lawful exercise of the right to strike.

7. Objectives of strikes. The Committee had asked the Government to indicate whether workers may exercise industrial action in protest of social and economic policy without penalty. It notes that the Government’s report does not contain any information in this regard. It observes, however, that it would appear from sections 3 and 4 of Ministerial Decree No. KEP. 232/MEN/2003 (see above), that the possibility of strikes is linked to the negotiation of an enterprise-level collective agreement; moreover, it would appear from information provided by the Government in its report under Convention No. 98 that federations and confederations do not engage in negotiations at above-enterprise levels. The Committee observes that the above appears to exclude the possibility of staging industrial action on general, social and economic policy questions. The Committee recalls that although purely political strikes do not fall within the scope of freedom of association, organizations responsible for defending workers’ socio-economic and occupational interests should, in principle, be able to use strike action to support their position in the search for solutions to problems posed by major social and economic policy trends which have a direct impact on their members and on workers in general, in particular as regards employment, social protection and the standard of living (General Survey of 1994 on freedom of association and collective bargaining, paragraph 165.) The Committee requests the Government to indicate in its next report the measures taken or contemplated so as to allow trade union federations and confederations to engage in industrial action linked to questions of general social and economic policy.

8. Restrictions on the right to strike in essential services. The Committee notes from the ICFTU comments that section 5 of Ministerial Decree No. KEP.232/MEN/2003 provides that strikes at “enterprises that cater to the interests of the general public and/or enterprises whose activities would endanger the safety of human life if discontinued are declared illegal” (Ministerial Decree KEP.232/MEN/2003), without specifying what types of enterprises are included in this classification, thus leaving the matter to the Government’s discretion. According to the ICFTU, strikes have been prohibited in practice in the public sector, essential services and enterprises serving the public interest. The Committee notes that according to the Government, in line with the explanatory note on section 139 of Manpower Act No. 13 of 2003, enterprises serving the public interest and/or enterprises whose activities when interrupted by strikes endanger the safety of human life, are hospitals, the fire department, the railway service, enterprises in charge of sluices, those in charge of regulating air traffic and those in charge of sea traffic. In this regard, the Committee refers the Government to its comments below concerning the railway service.

9. Restrictions on the right to strike in the railway service. The Committee had requested the Government to take the necessary measures so as to ensure that railway employees may fully exercise the right to strike without penalty. The Committee notes that the Government’s report does not contain any information in this regard. In previous reports, the Government had indicated that the explanatory note on section 139 of Manpower Act No. 13 of 2003, provides that only railway intersection officers are included among the workers that relate to public safety since they have specific duties which differ from those of other railway workers; consequently, they can go on strike as long as someone is on duty. Recalling that railway services generally cannot be considered as an essential service, the Committee requests the Government to indicate in its next report the measures taken or contemplated so as to ensure that section 139 of Manpower Act No. 13 can only be used to restrict the right to strike of railway intersection workers.

10. Sanctions for strike action. In previous comments, the Committee had requested the Government to amend its legislation so as to ensure that the sanctions for illegal strike action are not disproportionate, given that heavy sanctions can be imposed, under section 185 of the Manpower Act, for violations of section 139 of the Manpower Act (one to four years’ imprisonment and/or a fine from Rp.100,000,000 to Rp.400,000,000). The Committee notes that the Government’s report does not provide information in this regard and once again requests it to amend the sanctions imposed under section 185 of the Manpower Act for illegal strike action in violation of section 139 of the Manpower Act so as to ensure that such sanctions are not disproportionate to the seriousness of the offence. The Committee would point out in this regard that any violent act can always be punished under the general penal law. However, penal sanctions for participation in a peaceful strike action should not be resorted to.

11. The Committee notes from the ICFTU comments that according to section 6(2) and (3) of Ministerial Decree No. KEP.232/MEN/2003, in case of an illegal strike, the employer may make two written appeals within a period of seven days for workers to return to work, and if the workers do not respond, they are considered as having resigned. According to the ICFTU, such appeals are commonly used by employers as intimidation tactics against strikers. The Committee notes from the facts of cases brought before the Committee on Freedom of Association (e.g. Case No. 2472, 348th Report), that employers have the possibility to issue written appeals, and in case of non-response, consider workers as having resigned, pending a final finding as to the legality of the strike by an impartial body; in these cases, the employer may suspend the workers in question while waiting for the finding of illegality by the competent body, at which point, the employer is authorized to dismiss the workers retroactively. The Committee observes that as a result of this practice, along with the numerous and stringent legal requirements which make the staging of legal strikes very difficult if not impossible in practice, workers run the risk of dismissal within a context of uncertainty as to the lawfulness of their strike; all of this is likely to intimidate workers into abandoning the strike. Under these conditions, the Committee is of the view that the issuing of back-to-work appeals by the employer should be possible only after a final finding by an independent body that a strike is indeed illegal and not pending such a decision. The Committee requests the Government to indicate in its next report the measures taken to amend section 6(2) and (3) of Ministerial Decree No. KEP 232/MEN/2003 to ensure that employers may not issue appeals to striking workers to return to work prior to a finding by an independent body that a strike is illegal.

12. Dissolution and suspension of organizations by administrative authority. The Committee had noted that if trade union officials violate either section 21 or 31 of the Trade Union/Labour Union Act No. 21 of 2000 – by either failing to inform the Government of any changes in the union’s constitution or by‑laws within 30 days or failing to report any financial assistance coming from overseas sources – serious sanctions can be imposed under section 42 of the Trade Union/Labour Union Act, namely, the revocation and loss of trade union rights or suspension. The Committee had requested the Government to repeal the reference to sections 21 and 31 in section 42 of the Trade Union/Labour Union Act so as to provide for means other than suspension of trade union rights for rectifying delays in notification. The Committee further noted that legislation requiring authorization for a national trade union to accept financial assistance from an international organization of workers infringes the right to affiliate with international organizations of workers and to benefit from such affiliation, and requested the Government to provide further details on the manner in which the obligation to report any financial assistance coming from overseas is applied in practice. The Committee notes that the Government’s report does not contain any information in this regard. The Government had indicated in the past that it still applied regulations obliging trade unions to report any financial assistance coming from overseas, according to section 31 of the Trade Union/Labour Union Act, in order to secure that the assistance is utilized for the improvement of the welfare of the union members and not for other improper purposes. Moreover, the sanction provided under section 42 is aimed to ensure that trade unions have administrative discipline and has never been applied until now.

While noting the fact that section 42 has never been applied and that according to the Government it mainly serves a dissuasive purpose, the Committee considers that the sanction of suspension for a failure to report a change in the trade union’s constitution or by-laws (as a result of sections 21 and 42 of the Trade Union/Labour Union Act) is clearly disproportionate and that section 31(1) read together with section 42 is tantamount to requiring previous authorization for the receipt of funds from abroad, which is contrary to Articles 3 and 6 of the Convention (on the contrary, there is no infringement of the Convention if, for example, the supervision is limited to the obligation of submitting periodic financial reports (see General Survey on freedom of association and collective bargaining, 1994, paragraph 125)). The Committee once again requests the Government to indicate in its next report the measures taken or contemplated so as to repeal the reference to sections 21 and 31 in section 42 of the Trade Union/Labour Union Act.

13. In previous comments, the Committee had noted that section 42 of Trade Union/Labour Union Act No. 21 of 2000, also provides for the administrative sanction of revocation of a trade union’s record number (and consequent loss of trade union rights) in the event of trade union membership falling below the required minimum. In particular, the Committee had noted that there is a possibility to appeal to a judicial body against the governmental institutions that take such a decision under Act No. 5 of 1986 on the Administrative Court, and had requested the Government to indicate whether the appeal suspends the effect of the sanction until a judgement has been handed down and to provide a copy of Act No. 5 of 1986. In previous reports, the Government had indicated that the appeal did not have the effect of suspending the sanction and that Act No. 5 of 1986 had been amended by Act No. 9 of 2004.

The Committee, noting that the latest report by the Government does not provide any information in this regard, once again notes that measures of dissolution and suspension of trade unions by administrative authority involve a serious risk of interference in the very existence of organizations and should therefore be accompanied by all the necessary guarantees, in particular due judicial safeguards, in order to avoid the risk of arbitrary action. Thus, the organization affected by such measures must not only have the right of appeal to an independent and impartial judicial body, but the administrative decision should not take effect until that body hands down a final decision (see General Survey on freedom of association and collective bargaining, 1994, paragraph 185). The Committee requests the Government to indicate in its next report the measures taken or contemplated so as to ensure that measures of dissolution or suspension of trade unions by the administrative authority do not take effect until a final decision has been handed down by the Administrative Court in case of appeal.

Observation (CEACR) - adopted 2006, published 96th ILC session (2007)

The Committee notes the comments of the International Confederation of Free Trade Unions (ICFTU) of 10 August 2006, which refer, on the whole, to pending legislative issues and issues relating to the application of the Convention in practice which are now being examined. Moreover, the ICFTU cites the arrests of trade union leaders, threats of physical aggression, acts of violence and anti‑trade union police harassment against strikers and demonstrators, as well as impediments in the procedures for registering a federation. In this regard, the Committee requests the Government to provide its observations relating to the comments made by the ICFTU.

Moreover, the Committee requests the Government to provide, in time for its next session in November-December 2007 and in accordance with the regular reporting cycle, its observations on the legislative issues mentioned in the Committee’s previous observation in 2005 (see 2005 observation, 76th Session).

Direct Request (CEACR) - adopted 2005, published 95th ILC session (2006)

The Committee takes note of the information contained in the Government’s report.

The Committee’s previous comments concerned the need to address certain discrepancies between the national legislation and the Convention.

1. Right to organize of civil servants. The Committee had requested that the Government specify any act or regulation ensuring the implementation of the right to organize of civil servants pursuant to section 44 of Act No. 21 of 2000 which proclaims that civil servants shall enjoy freedom of association and that the implementation of this right shall be regulated in a separate Act. The Committee notes that the Government indicates that such Act has not been adopted yet. The Committee asks the Government to indicate in its next report the steps taken for the adoption of an Act guaranteeing the exercise of the right to organize to civil servants pursuant to section 4 of Act No. 21 of 2000 and to indicate the manner in which civil servants organize, in practice, which the adoption of legislation is pending, including statistics on the number of civil servants’ organizations at various levels.

2. Right to organize of employers. The Committee had requested that the Government provide a copy of any rulings made concerning the right to organize of employers pursuant to section 105(1) of Manpower Act No. 13 of 2003, which grants this right to employers and adds that "rulings concerning entrepreneurs’ organizations shall be determined and specified in accordance with valid statutory legislation". The Committee notes that according to the Government, employers’ organizations are regulated by Act No. 1 of 1987 concerning the Chamber of Commerce and Industry (KADIN). The basic internal regulation of KADIN states that APINDO (the main employers’ association) is a branch of KADIN dealing with industrial relations and labour issues. The Committee asks the Government to provide a copy of Act No. 1 of 1987 as well as the internal regulation of KADIN in its next report and to specify whether in general, other employers’ organizations can be established independently of KADIN.

3. Restrictions on the right to strike. The Committee had requested that the Government take the necessary measures so as to ensure that railway employees may fully exercise the right to strike without penalty. The Committee notes that according to the Government, the explanatory note on section 139 of the Manpower Act provides that only railway intersection officers are included among the workers that relate to public safety since they have specific duties which differ from those of other railway workers; consequently, they can go on strike as long as someone is on duty. The Committee recalls that the railway services can be seen as an enterprise in which a minimum service can be required, so as to avoid damages which are irreversible or out of all proportion to the occupational interests of the parties to the dispute as well as damages to third parties, namely users or consumers who suffer the economic effects of collective disputes. However, a system of minimum services should meet at least two requirements: (i) it must be a genuinely minimum service; and (ii) it should be defined through negotiations between the parties and in case of dispute, determined by an independent body. The Committee asks the Government to indicate in its next report the measures taken or contemplated so as to ensure that railway employees may fully exercise the right to strike without penalty, subject to the provision of a minimum service.

4. Objectives of strikes. The Committee had requested that the Government indicate whether workers may exercise industrial action in protest of social and economic policy without penalty. The Committee notes that the Government does not provide an answer in this respect. It once again asks the Government to indicate whether workers may stage industrial action in protest for the general social and economic policy without penalty.

5. Right to strike. The Committee had requested that the Government provide a copy of any relevant ministerial decision regulating the legal consequences for staging an illegal strike pursuant to section 142 of the Manpower Act. The Committee notes from the Government’s report that the consequences of illegal strikes are stipulated in Ministerial Decree No. Kep. 232/Men/2003. The Committee takes note of the text of the Ministerial Decree which provides that participation in illegal strikes shall be considered as absence from work and an act of resignation if the worker does not return to work after having been invited to do so twice within seven days (sections 6 and 7(1)). Moreover, if the illegal strike causes the loss of human life as a result of the discontinuation of jobs that should have been performed uninterruptedly, the illegal strike shall be classified as a serious or major offence (section 7(2)). The Committee also notes however, that for a strike to be considered legal it must be carried out as a result of failed negotiations (section 3) and that negotiations shall be considered failed only if both sides make a declaration to this effect in the negotiation minutes (section 4). The Committee recalls that the conditions stipulated in the law for the exercise of the right to strike should not be such that the exercise of this right becomes very difficult or even impossible in practice. The Committee asks the Government to indicate in its next report the measures taken or contemplated to amend section 4 of Ministerial Decree No. Kep. 232/Men/2003 so that a finding as to whether negotiations have failed after a certain period, can be made either by an independent body or be left upon the parties to the dispute.

6. Sanctions for strike action. The Committee had also requested that the Government amend its legislation so as to ensure that the sanctions for illegal strike action are not disproportionate to the seriousness of the violation bearing in mind that violent acts may be punished under the general penal law and that the measure of imprisonment for a peaceful strike action do not favour stable industrial relations. The Committee notes that the Government specifies that heavy sanctions (one to four years’ imprisonment and/or a fine from Rp100 million to Rp400 million) can be imposed for violations of section 143 of the Manpower Act, not section 139 as previously indicated by the Committee; this section provides that no one shall prevent workers and trade unions from exercising their right to strike legally, orderly and peacefully and that it is prohibited to arrest and detain workers who are striking legally, orderly and peacefully. The Committee takes note of this information. It asks the Government to specify the sanctions applicable for a violation of section 139 of the Manpower Act.

7. Compulsory arbitration. The Committee had noted that a Dispute Settlement Bill was pending and had requested that the Government provide information on the outcome of the legislative process concerning this Bill. The Committee notes from the Government’s report that the Bill was adopted and became Act No. 2/2004 concerning Industrial Relations Dispute Settlement. The implementation of this Act, which was supposed to enter into force in January 2005, has been postponed until January 2006 based on Government Regulation in lieu of Act No. 1/2005 agreed to by the House of Representatives in July 2005. The Committee takes note of this information. The Committee notes that Industrial Relations Act No. 2/2004 contains provisions which allow compulsory arbitration to be imposed at the initiative of one of the parties to an industrial dispute. The Committee examines this point in the framework of Convention No. 98.

8. Dissolution and suspension of organizations by administrative authority. The Committee had noted that if trade union officials violated either section 21 or 31 of Act No. 21 of 2000 concerning trade unions/labour unions - by either failing to inform the Government of any changes in the union’s constitution or by-laws within 30 days or failing to report any financial assistance coming from overseas sources - serious sanctions would be imposed under section 42 of the Trade Union/Labour Union Act, namely, the revocation and loss of trade union rights or suspension. The Committee had requested the Government to repeal the reference to sections 21 and 31 in section 42 of the Trade Union/Labour Union Act so as to provide for means other than suspension of trade union rights for rectifying delays in notification. The Committee further noted that legislation requiring authorization for a national trade union to accept financial assistance from an international organization of workers infringes the right to affiliate with international organizations of workers and to benefit from such affiliation and requested the Government to provide further details on the manner in which the obligation to report any financial assistance coming from overseas is applied in practice. The Committee notes the Government’s statement that it still applies regulation obliging trade unions to report any financial assistance coming from overseas, according to section 31 of the Trade Union/Labour Union Act, in order to secure that the assistance is utilized for the improvement of the welfare of the union members and not for other improper purposes. Moreover, the sanction provided under section 42 is aimed to ensure that trade unions have administrative discipline and has never been applied until now. While noting the fact that section 42 has never been applied and mainly serves a dissuasive purpose, the Committee considers that the sanction of suspension for a failure to report a change in the trade union’s constitution or by-laws (as a result of sections 21 and 42 of the Trade Union/Labour Union Act) is clearly disproportionate. It also considers that section 31(1) read together with section 42 is tantamount to requiring previous authorization for the receipt of funds from abroad which is contrary to Articles 3 and 6 of the Convention; on the contrary, there is no infringement of the Convention if, for example, the supervision is limited to the obligation of submitting periodic financial reports (see General Survey of 1994 on freedom of association and collective bargaining, paragraph 125). The Committee therefore once again requests the Government to indicate in its next report the measures taken or contemplated so as to repeal the reference to sections 21 and 31 in section 42 of the Trade Union/Labour Union Act.

9. The Committee had noted that section 42 of the Trade Union/Labour Union Act also provided for the administrative sanction of revocation of a trade union’s record number (and consequent loss of trade union rights) in the event of trade union membership falling below the required minimum. The Committee had noted that there was a possibility to appeal to a judicial body against the governmental institutions that took such a decision under Act No. 5 of 1986 on the Administrative Court, and had requested the Government to indicate whether the appeal suspended the effect of the sanction until a judgment had been handed down and to provide a copy of Act No. 5 of 1986. The Committee notes from the Government’s report that the appeal does not have the effect of suspending the sanction and that Act No. 5 of 1996 has been amended by Act No. 9 of 2004. The Committee notes that measures of dissolution and suspension of trade unions by administrative authority involve a serious risk of interference in the very existence of organizations and should therefore be accompanied by all the necessary guarantees, in particular adequate judicial safeguards, in order to avoid the risk of arbitrary action. Thus, the organization affected by such measures must not only have the right of appeal to an independent and impartial judicial body, but the administrative decision should not take effect until that body hands down a final decision (see General Survey, op. cit., paragraph 185). The Committee requests that the Government indicate in its next report the measures taken or contemplated so as to ensure that measures of dissolution or suspension of trade unions by the administrative authority do not take effect until a final decision has been handed down by the Administrative Court in case of appeal.

Observation (CEACR) - adopted 2005, published 95th ILC session (2006)

The Committee takes note of the information contained in the Government’s report.

The Committee’s previous comments concerned the practical implementation of freedom of association rights in the country, pursuant to comments on serious violations of trade union rights (attacks, violence, arrests and detentions, harassment of trade unionists) made by the International Confederation of Free Trade Unions (ICFTU). The Committee had requested the Government to indicate any measures taken to ensure that trade unions can exercise their activities in a climate free of threats and intimidation of any kind. In this respect, it had taken note of the draft guidelines of the Ministry of Manpower and Transmigration and the Indonesian National Police aimed to provide instructions on the role and conduct of police officers in relation to strikes, lockouts and labour disputes and had requested that the Government keep it informed of developments in this regard.

The Committee notes with interest that in its report the Government indicates that the Ministry of Manpower and Transmigration and the Indonesian Police have issued, with ILO technical assistance, Guidance on the Conduct of Indonesian Police concerning Law Enforcement and Order in Industrial Relations Disputes. Academic and tripartite representatives were involved in the establishment of this guidance, the aim of which is to ensure a standardized official conduct by the police in keeping the public safety and order as well as enforcing the law when there are excesses in industrial disputes, strikes, demonstrations, etc. Furthermore, the Committee also notes with interest that the military is not allowed to have any involvement in industrial disputes in accordance with the instruction letter of the Indonesian Military Commander/ Coordinator of the National Stability Board No. STR/85/STANAS/VII/1998.

The Committee takes note of the text of the Guidance on the Conduct of Indonesian Police concerning Law Enforcement and Order in Industrial Relations Disputes. It notes in this respect that section 1 of the Guidelines which contains a general policy statement, provides in subsections (b) and (c) that “any strike, demonstration or company lockout in general may result in the disturbance of public security and order” and that in such situations “and in industrial disputes in general, appropriate action of the Indonesian National Police (INP) is necessary to maintain public security and order, enforce the law, and allow the exercise of rights of workers and employers to strike, demonstration and lockout”.

The Committee considers that the above provisions may give rise to an institutionalization of the role of the police in labour disputes in a manner which may infringe upon the right to strike and potentially provoke a disturbance.

Finally, the Committee notes with concern that section 8(e) of the Guidelines provides that “firearms can be used only in situations where there is serious and imminent threat to the safety of life and property and dignity …”. The Committee considers that police interference in strikes and protests, especially with the use of firearms should be limited to exceptional situations of violence involving a genuine threat to public order and considers that the reference in the Guidelines to an imminent threat to “dignity” may be too general and may not ensure sufficient guarantees against the use of excessive violence.

The Committee recalls that the authorities should resort to calling in the police in a strike situation only if there is a genuine threat to public order and governments should take measures to ensure that the competent authorities receive adequate instructions so as to avoid the danger of excessive violence in trying to control demonstrations that might undermine public order. Moreover, arrests should be made only where violence or other criminal acts have been committed.

The Committee requests that the Government indicate the measures taken and instructions given to the police to ensure respect for these principles.

The Committee is also addressing a request on certain other points directly to the Government.

Direct Request (CEACR) - adopted 2003, published 92nd ILC session (2004)

The Committee takes note of the information contained in the Government’s report. It further notes the entry into force of Act No. 13 of 2003 concerning manpower.

The Committee recalls that, in its previous comments, it had requested the Government to transmit its observations on the comments of the International Confederation of Free Trade Unions (ICFTU) of September 2002. The ICFTU has since sent additional comments concerning the application of the Convention in a communication dated 25 June 2003.

The ICFTU mentions restrictions on the right to form trade unions and the right to strike. Furthermore, it stresses that the new Manpower Act contains many provisions contrary to the principles of freedom of association and collective bargaining. It also mentions that the workers in Indonesia have conducted widespread protest action over the recent introduction of the Manpower Act.

The Committee takes note of the Government’s response to the ICFTU’s comments dated 3 November 2003. The Committee notes with interest that the Government intends, in cooperation with the ILO, to carry out awareness-raising activities continuously, including training in selected areas, aimed at providing the employers, workers/labourers and community with an appropriate understanding of the Convention so that it can be applied properly.

Bearing in mind the ICFTU’s observations and its previous comments, the Committee draws the Government’s attention to the following points.

Article 2 of the Convention. Right of workers and employers,
without distinction whatsoever, to establish and join organizations

Right to organize of civil servants. In its previous comments, the Committee had noted that under section 44(1) of Act No. 21 of 2000 concerning trade unions/labour unions, civil servants enjoy freedom of association and the right to organize. However, the Committee further noted that subsection 2 provides that the implementation of the freedom of association and the right to organize of civil servants shall be regulated in a separate Act. According to the Government, the provisions for establishing a workers’ union for civil servants have been accommodated by section 30 of Act No. 43 of 1999 concerning the basic provisions respecting personnel. The Committee notes that section 30(1) of these provisions states: "The fostering of the spirit of the corps, code of ethics, and disciplinary regulations of the Civil Service shall not be contradictory to section 27, clause (1), and section 28 of the 1945 Constitution". Clause (2) of section 30 further states: "The fostering of the spirit of the corps, code of ethics, and disciplinary regulations referred to in clause (1) is done pursuant to a government regulation." The Committee considers that Act No. 43 of 1999 does not regulate the freedom of association and the right to organize of civil servants. The Committee recalls that public servants, like all other workers, without distinction whatsoever, have the right to form and join organizations of their own choosing, without previous authorization, for the promotion and defence of their occupational interests. Furthermore, while the legislation recognizes generally the right of public servants to organize in section 44 of Act No. 21 of 2000, this law also sets forth that the implementation of this right will be guaranteed under other legislation. The Committee requests the Government to specify any act or regulation ensuring the implementation of the right to organize of civil servants and to indicate the manner in which civil servants organize in practice, including statistics on the number of such organizations at various levels.

Right to organize of employers. The Committee takes note of section 104(1) of the Manpower Act, which provides generally for the right of every worker to form and join trade unions. The Committee notes that section 105(1) grants the same right to employers, specifying that "rulings concerning entrepreneurs’ organizations shall be determined and specified in accordance with valid statutory legislation". It requests the Government to provide a copy of any rulings made concerning entrepreneurs’ organizations.

Article 3. Right of workers’ organizations to organize
their administration and to formulate their programmes

Restrictions on the right to strike. The ICFTU states that the law provides for the right to strike, but that there are substantial restrictions particularly in respect of workers in public services, essential services and enterprises that serve the public interest. The Government replies that the right to strike is a basic right of workers/labourers as provided for by section 137 of the Manpower Act and that section 143 states that anyone who prevents workers/labourers and trade unions/labour unions from using their right to strike legally, orderly and peacefully shall be subject to penal sanctions.

The Committee notes that section 137 of the Manpower Act guarantees the right to strike. It further notes, however, that section 139 of the Act concerns strikes in "enterprises that serve the public interest and/or enterprises whose types of activities, when interrupted by a strike, will lead to the endangerment of human lives". According to the explanatory notes on the Act, such enterprises include: hospitals; fire departments; railway services; and enterprises in charge of sluices, air traffic and sea traffic. Furthermore, section 139 provides that the strike "shall be arranged in such a way so as not to disrupt public interests and/or endanger the safety of other people", which means, according to the explanatory notes, that the strikes shall be carried out by workers who are not on duty. The Committee recalls that as an exception to the right to strike, the essential services in which this principle may be entirely or partly waived should be defined restrictively. As such, the Committee considers that essential services are only those, the interruption of which would endanger the life, personal safety or health of the whole or part of the population. However, in order to avoid damages which are irreversible or out of all proportion to the occupational interests of the parties to the dispute, as well as damages to third parties, namely users or consumers who suffer the economic effects of collective disputes, the authorities could establish a system of minimum service in other services which are of public utility, rather than impose an outright ban on strikes, which should be limited to essential services in the strict sense of the term (see General Survey of 1994 on freedom of association and collective bargaining, paragraphs 159 and 160). In this respect, the Committee points out that, as for the services mentioned in the explanatory notes, it does not consider the railway services as an essential service in the strict sense of the term, but it may be considered as an enterprise for which a minimum service could be provided. The Committee requests the Government to take the necessary measures so as to ensure that railway employees may fully exercise the right to strike without penalty.

Furthermore, the Committee notes that section 138 seems also to permit sympathy strikes. The Committee considers that organizations responsible for defending workers’ socio-economic and occupational interests should, in principle, be able to use strike action to support their position in the search for solutions to problems posed by major social and economic policy trends which have a direct impact on their members and on workers in general, in particular as regards employment, social protection and the standard of living (see General Survey, op. cit., paragraph 165). The Committee therefore requests the Government to indicate whether workers may exercise industrial action in protest of social and economic policy without penalty.

Sanctions for strike action. The Committee notes that pursuant to section 142 of the Manpower Act, the legal consequences of staging an illegal strike shall be regulated by a ministerial decision. The Committee requests the Government to provide a copy of any relevant ministerial decision made in this respect.

Furthermore, a violation of the abovementioned section 139 is sanctioned by one to four years’ imprisonment and/or a fine from Rp100,000,000 to Rp400,000,000. The Committee recalls that sanctions for strike action should be possible only where the prohibitions in question are in conformity with the provisions of the Convention. Even in such cases, the existence of heavy sanctions for strike action may well create more problems than they resolve. Since the application of disproportionate penal sanctions does not favour the development of harmonious and stable industrial relations, if measures of imprisonment are to be imposed at all, they should be justified by the seriousness of the offences committed. In addition, fines imposed on participants in strikes which are in violation of provisions imposing restrictions on the right to strike which are in conformity with the Convention, should be proportionate to the seriousness of the violations. It should also be recalled that peaceful strikes should not be sanctioned by imprisonment (see General Survey, op. cit., paragraphs 177-178). As concerns sanctions against strikers in respect of restrictions which are in conformity with the Convention, bearing in mind that violent acts may be punished under the general penal law and that the measures of imprisonment for a peaceful strike action do not favour stable industrial relations, the Committee requests the Government to amend its legislation so as to ensure that the sanctions for illegal strike action in such cases are not disproportionate to the seriousness of the violation.

Finally, in its previous comments, the Committee had noted that a Dispute Settlement Bill was pending. It requests the Government to provide information on the outcome of the legislative process concerning the Dispute Settlement Bill and asks once again the Government to provide a copy of this bill, or the text which has been finally adopted, with its next report.

Article 4. Dissolution and suspension of organizations by administrative authority. The Committee notes that the Government reiterates its refusal to repeal the reference to sections 21 and 31 in section 42 of Act No. 21 of 2000 concerning trade unions/labour unions. The Committee recalls that section 42 of Act No. 21 of 2000 provides for an administrative sanction, namely, revocation of the union record number and loss of trade union rights, in the event of loss of trade union membership beyond the required minimum and in the event of a violation of sections 21 and 31 of the Act. Section 21 of the Act states that the officials of workers’ organizations must inform the government agency of any changes in the union’s constitution or by-laws within 30 days. Section 31(1) lays down the obligation to report any financial assistance coming from overseas sources. The Committee notes the Government’s indication that such requirements were set up and agreed after a long debate and negotiations in the tripartite, inter-ministerial, and parliamentary discussion levels. The Government further states that the revocation of the union record number is only applied to the unions who do not fully meet the requirements and that the right to organize of the respective unions remains valid although they have not yet fulfilled these requirements. The objectives of such requirements are to ensure the unions are professional, competent, credible, and accountable in managing their organization, to avoid misconduct of the union’s officials and to protect third parties. Finally, the Government indicates that such revocation or suspension may only be applied based on the freedom of association principles and since it is governmental institutions that take the decision, a right of appeal to a judicial body is secured by Act No. 5 of 1986 on the Administrative Court.

With respect to section 31(1), the Committee recalls once again that this provision, read together with section 42, is tantamount to requiring previous authorization for the receipt of funds from abroad. The Committee recalls that legislation requiring authorization for a national trade union to accept financial assistance from an international organization of workers infringes the right to affiliate with international organizations of workers and to benefit from such affiliation. Furthermore, all national organizations of workers and employers should have the right to receive financial assistance from international organizations of workers and employers, respectively, whether they are affiliated or not to the latter. The Committee requests the Government to provide further details on the manner in which the obligation to report any financial assistance coming from overseas is applied in practice.

The Committee still considers that a violation of either section 21 or 31 should not give rise to such serious sanctions as the revocation and loss of trade union rights or suspension. It recalls that, in practice, such administrative sanctions amount to a suspension of the trade union. The Committee considers that such a measure taken by the administrative authority constitutes a serious infringement of trade union rights and therefore, requests once again the Government to amend its legislation by repealing the reference to sections 21 and 31 in section 42 of the Trade Union/Labour Union Act so as to provide for means other than suspension of trade union rights for rectifying delays in notification and to keep it informed of the measures taken or envisaged in this respect.

With respect to the possibility of revoking the union record number in the event of trade union membership falling below the required minimum, the Committee takes note of the right of appeal to a judicial body secured by Act No. 5 of 1986 on Administrative Court. It requests once again the Government to indicate if the appeal suspends the effect of the sanction until a judgment has been handed down and to provide a copy of Act No. 5 of 1986.

Observation (CEACR) - adopted 2003, published 92nd ILC session (2004)

The Committee takes note of the information contained in the Government’s report. It further notes the entry into force of Act No. 13 of 2003 concerning manpower.

The Committee recalls that, in its previous comments, it had requested the Government to transmit its observations on the communication of the International Confederation of Free Trade Unions (ICFTU) of September 2002. The ICFTU has since sent additional comments concerning the application of the Convention in a communication dated 25 June 2003.

Practical application of freedom of association rights. The Committee notes that the ICFTU mentions that there is considerable anti-union sentiment and activity in Indonesia, which is shown by discrepancies between legislation and practice. The Committee takes note of the list of serious violations of freedom of association rights contained in the ICFTU’s report: the growing number of attacks against trade unionists conducted by paramilitary groups; the arrests and detentions of trade union organizers for strike activity; the acts of violence against trade unionists during arrests and/or detention; and the harassment of union activists. Recalling that the guarantees set out in the international labour Conventions, in particular those relating to freedom of association, can only be effective if the civil and political rights enshrined in the Universal Declaration of Human Rights and other international instruments are genuinely recognized and protected (see General Survey of 1994 on freedom of association and collective bargaining, paragraph 43), the Committee requests the Government to transmit its observations on the ICFTU’s comments in this respect and to indicate any measures taken to ensure that trade unions can exercise their activities in a climate free of threats and intimidation of any kind.

In this respect, the Committee takes note of the steps taken by the Government, in particular the draft guidelines of the Ministry of Manpower and Transmigration and the Indonesian National Police in order to provide instructions on the role and conduct of police officers in relation to strikes, lockouts and labour disputes in general. It requests the Government to keep it informed of developments in this regard.

The Committee is also addressing a request directly to the Government.

Direct Request (CEACR) - adopted 2002, published 91st ILC session (2003)

The Committee notes the information provided in the Government’s report. It further notes the comments made by the ICFTU on the application of the Convention and requests the Government to provide its comments thereon.

Article 2 of the Convention. Right of workers and employers, without distinction whatsoever, to establish and join organizations. The Committee recalls that in its previous comment it had requested the Government to provide a copy of Act No. 43 of 1999 concerning the basic provisions respecting personnel which, according to the Government, ensures the right of civil servants to establish a workers’ union for civil servants, so that it may examine its conformity with the provisions of the Convention. The Committee once again requests that the Government provide a copy of Act No. 43.

Article 3. Right of workers’ organizations to organize their administration and to formulate their programmes. The Committee recalls that in its previous comment it had asked the Government to provide a copy of the national statutory rules concerning the right to strike. It once again requests that the Government provide a copy of the relevant statutory rules.

The Committee notes that the Government had indicated, in its previous report, that the Manpower Development and Protection Bill was under consideration before the Parliament. The Committee further notes that a Dispute Settlement Bill is also pending. The Committee trusts that the final version of these Bills will be in full conformity with the provisions of the Convention and it asks the Government to provide a copy of these Bills, or the final adopted texts, with its next report.

Article 4. Dissolution and suspension of organizations by administrative authority. The Committee previously noted section 42 of Act No. 21 on trade unions, which provides for an administrative sanction, namely, revocation of the union record number and loss of trade union rights, in the event of trade union membership falling below the required minimum and in the event of a violation of sections 21 and 31 of the Act. Section 21 of the Act states that the officials of workers’ organizations must inform the government agency of any changes in the union’s constitution or by-laws within 30 days. Section 31(1) of Act No. 21 lays down the obligation to report financial assistance coming from overseas sources. In its earlier comment, the Committee had considered that this last provision, read together with section 42 of the Act, was tantamount to requiring previous authorization for the receipt of funds from abroad. Moreover, the Committee had considered that a violation of either of these two provisions (section 21 or 31) should not give rise to such serious sanctions as the revocation and loss of trade union rights. The Committee notes the Government’s indication that the reason for the obligation to report financial assistance coming from overseas is to better understand the matters and the grounds on which any international assistance should be maintained and used. According to the Government, the requirement to report foreign financial assistance is not tantamount to previous authorization and the trade unions are free to use the financial aid for their activities. Furthermore, the Government states that there are no serious sanctions for any misconduct in the use of international financial assistance. The Committee notes however that the sanction provided by section 42 of the Act is the suspension of the organization. The Committee considers that such a measure taken by the administrative authority constitutes a serious infringement of trade union rights. It therefore once again requests that the Government take action to repeal the reference to sections 21 and 31 in section 42 of the Act.

As concerns the possibility of revoking the union record number in the event of trade union membership falling below the required minimum, the Committee had previously noted that the Act does not provide for the possibility of appealing such a sanction. The Committee had asked the Government to indicate whether national legislation ensures a right of appeal to an independent and impartial judicial body for organizations affected by this administrative sanction and whether such appeal suspends the effect of the sanction until a judgement has been handed down. The Committee notes the Government’s statement that an appeal to a independent and impartial judicial body is provided in the draft Bill on labour disputes settlement. The Committee trusts that the necessary measures will be taken in the near future to ensure the right of appeal to an independent and impartial judicial body for organizations affected by an administrative sanction under section 42 of Act No. 21 and asks the Government to provide, with its next report, any draft provisions or adopted texts in this regard.

Direct Request (CEACR) - adopted 2001, published 90th ILC session (2002)

The Committee notes with interest the information provided by the Government in its first report. It further notes with interest the entry into force of the Act of the Republic of Indonesia No. 21 Year 2000 concerning Trade Union/Labor Union and the efforts being made by the Government to bring its legislation into full conformity with the Convention. It nevertheless wishes to raise a certain number of points concerning the application of the following Articles of the Convention.

Article 2 of the Convention. Right of workers and employers, without distinction whatsoever, to establish and join organizations. The Committee notes that under section 44(1) of Act of the Republic of Indonesia No. 21 Year 2000 concerning Trade Union/Labor Union, civil servants enjoy freedom of association and the right to organize. However, the Committee further notes that subsection 2 of that section provides that the implementation of freedom of association and the right to organize of civil servants is regulated in a separate Act. According to the Government, the provisions for establishing a workers’ union for civil servants have been accommodated by Act No. 43, 1999, concerning the Basic Provisions Respecting Personnel. The Committee requests the Government to provide a copy of this Act.

Article 3 of the Convention. Right of workers’ organizations to organize their administration and to formulate their programmes. The Committee notes that, according to section 4 of the Act, trade unions, federations and confederations of trade unions have the function of a "planner of, the actuator of, and the party that is responsible for a strike in accordance with valid national statutory rules and regulations". The Committee asks the Government to provide a copy of the national statutory rules and regulations concerning the right to strike so that it may examine their conformity with the provisions of the Convention.

Article 4 of the Convention. Dissolution and suspension of organizations by administrative authority. The Committee takes note of section 42 of Act No. 21 which provides for an administrative sanction, namely, revocation of the union record number and loss of trade union rights, in the event of loss of trade union membership beyond the required minimum and in the event of a violation of sections 21 and 31 of the Act. Section 21 of the Act states that the officials of workers’ organizations have to inform the government agency of any changes in the union’s constitution or by-laws within 30 days. Section 31(1) of Act No. 21 lays down the obligation to report financial assistance coming from overseas sources. The Committee considers that this last provision, read together with section 42 of the Act, is tantamount to requiring previous authorization for the receipt of funds from abroad. Moreover, the Committee considers that a violation of either of these two provisions (section 21 or 31) should not give rise to such serious sanctions as the revocation and loss of trade union rights. It therefore requests the Government to repeal the reference to sections 21 and 31 in section 42 of the Act.

As concerns the possibility of revoking the union record number in the event of loss of trade union membership beyond the required minimum, the Committee notes that the Act does not provide for a possibility of appealing such a sanction. The Committee considers that the revocation of a union record number and consequent loss of trade union rights, even if temporarily, involves a serious risk of interference by the authorities in the very existence of worker organizations. Such administrative action should, therefore, be accompanied by all of the necessary guarantees, in particular due judicial safeguards, in order to avoid the risk of arbitrary action. The Committee recalls in this respect that it is preferable for legislation not to allow suspension of workers’ organizations by administrative authorities, but if it does, the organization affected by such measures must have the right of appeal to an independent and impartial judicial body which is competent to examine the substance of the case, to study the grounds for the administrative measures and, where appropriate, to rescind such measures. Moreover, the administrative decision should not take effect until a final decision is handed down (see 1994 General Survey on freedom of association and collective bargaining, paragraph 185). The Committee requests the Government to indicate whether national legislation ensures a right of appeal to an independent and impartial judicial body for an organization affected by this administrative sanction and whether such appeal suspends the effect of the sanction until a judgement has been handed down. It requests that the Government transmit a copy of any relevant legislation in this respect.

The Committee asks the Government to provide information in its next report on the measures taken or envisaged in respect of the abovementioned points.