Effect given to the recommendations of the committee and the Governing Body - Report No 340, March 2006

Case No 2236 (Indonesia) - Complaint date: 25-NOV-02 - Closed

Effect given to the recommendations of the Committee and the Governing Body

1. 104. The Committee last examined this case, which concerns allegations of anti-union discrimination by the Bridgestone Tyre Indonesia Company against four union officers suspended without pay, pending the outcome of dismissal procedures initiated by the company, at its March 2005 meeting [see 336th Report, paras. 68-78]. On that occasion, the Committee: (i) once again strongly regretted the Government’s failure to take the necessary steps so as to give precedence to the anti-union discrimination procedures over the dismissal procedures concerning the four trade union officers. The Committee insisted that the appropriate steps be taken in this respect, all the more since the procedure on the alleged anti-union discrimination had reached a stalemate while the dismissal procedures, although they had not yet resulted in final decisions and formal dismissal notifications, were following their course; (ii) requested the Government to take, as a matter of priority, the necessary measures so that workers who consider that they have been subject to anti-union discrimination, in violation of section 28 of Act No. 21/2000, can have access to means of redress which are expeditious, inexpensive and fully impartial and to keep it informed in this respect; (iii) urged the Government to take the necessary measures to expedite the procedure for the examination of specific allegations of anti-union discrimination concerning the four trade union officers. The Committee expected that the procedure would be completed in the near future in a fully impartial manner. If the allegations were found to be justified, but the workers had already received formal notification of their dismissals, the Committee once again requested that the Government ensure, in cooperation with the employer concerned, that the workers concerned would be reinstated or, if reinstatement was not possible, that they would be paid adequate compensation; (iv) requested the Government to provide copies of the remaining decisions of the National Administrative High Court, the decisions of the Supreme Court in respect of the dismissals as well as of any decision reached with due reasons on the allegations of anti-union discrimination.
2. 105. In communications dated 15 and 20 June 2005, the complainant organization underlined that the Government had failed to implement the recommendations of the Committee, three years after the fact, especially with regard to the need to give precedence to the proceedings concerning anti-union discrimination over the proceedings concerning the dismissals. With respect to the dismissal proceedings, the complainant indicates that it does not consider the National Administrative High Court, which ruled that two trade union officers should be dismissed without severance pay, as impartial. The complainant appealed to the Supreme Court against this decision and the case is still pending. With respect to the anti-union discrimination proceedings, the complainant indicated that the fact that there has been no result after three years of efforts by the Department of Manpower and Transmigration, the police and the Attorney-General to make the former director-president of the company to come to Indonesia so as to follow the judicial process, gives a strong and clear advantage to the employer’s side during the trial. The complainant also expressed doubts about the real intentions of the authorities in this respect, given the links between the former director-president and foreign investors in Indonesia. Regarding the trade union activities in the company, the complainant stated that although a new chairman of the union was nominated (Juli Setio Rahajjo), and although the working relations have not yet been stopped, the management of the company still refuses negotiations and there is no collective agreement for the period 2005-07, leading to a deterioration of the terms and conditions of employment in the company.
3. 106. In communications of 1 September and 31 October 2005, the Government indicated, with respect to the dismissal proceedings and their link to the proceedings concerning the alleged anti-union discrimination, that both proceedings have been processed simultaneously based on the available facts and evidence in order to accelerate the settlement of the case. Regarding the dismissals in particular, the Government stated that the Supreme Court’s decision is still pending on this issue. It underlined that it did not have any intention to give precedence to employment termination before completing the complaint against infringement of freedom of association.
4. 107. Regarding the proceedings on the alleged acts of anti-union discrimination, the Government stated that this process took a long period of time due to differences of opinion on the issue of infringement of freedom of association among the competent institutions, i.e. the labour inspectors, the police and the Attorney-General. After an in-depth analysis, the Attorney-General’s Office finally decided, on 24 March 2004, that the examination of the case was completed and ready to be handed over to the court. However, the trial has been hampered by the absence of the former president-director of the company, designated by the Government as “the suspect”, who returned to his home country. The Government reiterated that efforts are still under way to have him appear before the court (requesting the police department to bring the suspect to Indonesia, discussing with the police and informing them of the suspect’s address in his country, to be used in cooperation with the international police (Interpol)). Furthermore, the Government facilitated meetings between the employer and the respective workers in order to achieve a win-win solution, especially in terms of agreeable severance pay. Finally, with regard to the Committee’s suggestion to ensure the workers’ reinstatement or payment of compensation if the allegations of anti-union discrimination are confirmed, the Government indicates that it took note of this suggestion while waiting for the settlement of the case in line with prevailing laws and regulations. In a communication dated 10 March 2006, the Government indicated that the Ministry of Manpower and Transmigration (MOMT) and the Central Committee for Labour Dispute Settlement sent communications to the Supreme Court requesting it to give priority consideration to the review of the decisions of the State Administrative High Court. The MOMT together with the Supreme Court are carrying out intensive official coordination to keep the trial process going on.
5. 108. The Committee notes that, according to the complainant, the Government has failed to implement the Committee’s recommendations, especially with regard to the need to give precedence to the proceedings concerning anti-union discrimination over the proceedings concerning the dismissals. The complainant also expressed doubts concerning the impartiality of the National Administrative High Court which ruled on 21 October 2004 that two trade union officials should be dismissed without severance pay and informed the Committee that it took the matter to the Supreme Court where it is now pending. The Committee takes note of the statement made by the Government that it does not intend to give precedence to employment termination before the complaint of freedom of association infringements may be examined, and that the dismissal procedures are pending before the Supreme Court and have not yet resulted in final decisions and formal dismissal notifications. The Government requested the Supreme Court to give priority consideration to the review of the decisions of the State Administrative High Court and is carrying out official coordination in the framework of the trial. The Committee also notes, with regret however, that according to the Government, both procedures have gone ahead simultaneously. Thus, the dismissal procedure is at the final instance, whereas the procedure on anti-union discrimination has only just recently been referred to the court and its examination has been hampered, according to the Government, by the absence of the former director-president of the company. The Committee urges the Government to ensure that no decision may be rendered or enforced on the issue of dismissal before the question of anti-union discrimination may be fully examined and elucidated. The Committee requests the Government to keep it informed of developments in this respect and to communicate the text of the decision of the Supreme Court as soon as it is handed down.
6. 109. With respect to the general need to ensure appropriate means of redress against anti-union discrimination, the Committee regrets to note that the Government has not provided any information in this respect. The Committee once again requests the Government to take the necessary measures so that workers who consider that they have been subject to anti-union discrimination, in violation of section 28 of Act No. 21/2000, can have access to means of redress which, in addition to being speedy, should not only be impartial but also be seen to be such by the parties concerned.
7. 110. With respect to the examination of the allegations of anti-union discrimination against the four trade union officers, the Committee notes that according to the Government, after an in-depth analysis, the Attorney-General finally decided on 24 March 2004, that the examination of the case was completed and ready to be handed over to the court. However, the court proceedings have been hampered according to the Government, by the absence of the former director-president of the company and efforts made to bring him to Indonesia so as to attend the court proceedings have not produced any results. The Committee finally notes that efforts to facilitate meetings between the parties in order to find an agreeable solution in terms of severance pay have also not produced any result.
8. 111. The Committee observes that the physical presence of the former director-president of the company in the court proceedings concerning anti-union discrimination is not the only available way to ensure that sufficient information and evidence is obtained to elucidate the facts of this case. In addition, the Committee recalls that a number of years have elapsed since the complaint of anti-union discrimination against these four trade union officers was made and justice delayed is justice denied.
9. 112. The Committee therefore reiterates its previous recommendation that the Government ensure that the proceedings for the examination of allegations of anti-union discrimination against the four trade union officers be completed without further delay and in a fully impartial manner and so that they do not suffer any injustice by the fact that the former director-president has left the country. If the allegations are found to be true, but the workers have already received formal notification of their dismissals, the Committee once again urges the Government to ensure, in cooperation with the employer concerned, that the workers concerned are reinstated or, if reinstatement is not possible, that they are paid adequate compensation taking into account the damage caused and the need to avoid repetition of such acts in the future. The Committee requests to be kept informed in this respect.
10. 113. The Committee notes that, according to the complainant’s allegations, the company refuses to negotiate with the new executive committee of the union and, as a result, no collective agreement was signed for the period 2005-07. The Committee requests the Government to take all necessary measures to promote and encourage negotiations in the Bridgestone Tyre Indonesia Company with a view to the conclusion of a new collective agreement and to keep it informed of measures taken in this respect.