Interim Report - Report No 343, November 2006

Case No 2472 (Indonesia) - Complaint date: 15-FEB-06 - Closed

Allegations: The complainant organizations allege that since its establishment, the BWI’s affiliate, the All-Indonesian Federation of Wood, Forestry and General Workers’ Union (SP Kahutindo), has faced constant harassment and repeated violations of trade union rights by the employer, PT Musim Mas. In particular, it alleges the employer’s refusal to recognize the SP Kahutindo; establishment of a rival “yellow” union by the employer; dismissal of 701 workers and eviction of these workers and their families from their housing on the plantation estate, following a legal strike; non-renewal of contracts of 300 contract workers following the same strike; arrest of six trade union leaders; intimidation, harassment and disciplinary transfer of trade union members and officials. The complainant asserts that these violations took place with the complicity of the police forces and that the labour authorities failed to intervene to protect workers’ rights

929. The complaint is contained in communications from the Building and Wood Workers’ International (BWI) dated 15 February and 19 June 2006. In its communication dated 27 February 2006, the International Union of Food, Agricultural, Hotel, Restaurant, Catering, Tobacco and Allied Workers’ Associations (IUF) associated itself with the case. In communications dated 27 June and 25 July 2006, the International Confederation of Free Trade Unions (ICFTU) also associated itself with the case and sent additional allegations.

1. 930. The Government sent its observations in communications dated 17 March, 2 June and 20 July 2006.
2. 931. Indonesia has ratified the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87) and the Right to Organise and Collective Bargaining Convention, 1949 (No. 98).

A. The complainants’ allegations

1. 932. By its communication of 15 February 2006, the Building and Wood Workers’ International (BWI) lodged a complaint on behalf of its affiliate, the All-Indonesian Federation of Wood, Forestry and General Workers’ Union (SP Kahutindo). By way of background, the BWI explains that in 2003, the PT Musim Mas workers established a local Indonesian Prosperous Workers’ Union (SBSI). In mid-2003, a rival “yellow” union called the Musim Mas Workers’ Union (SP MM) was established by the enterprise management. Throughout 2004, the SBSI officers, including its chairperson, were harassed, arbitrarily transferred from their posts and eventually dismissed by PT Musim Mas. The remaining SBSI officers voted to disband the union rather than face further harassment. Also in 2004, Mr. Hadi Surya and four other workers were transferred to new posts situated about 15 km from their homes after they refused to sign a document stating that they were members of the SP MM. As the company refused to provide transport for the workers concerned, they were not able to report to work and were fired for absenteeism on 10 August 2004. On 24 February 2005, the Riau Province Committee for Industrial Dispute Settlement (P4D) ruled in favour of the dismissal of Mr. Hadi Surya. The complainant organization states that while the P4D was not convinced by the company’s argument that the transfer of Mr. Hadi Surya was a part of a normal rotation of staff and found that it was “very natural” that the workers could not report for work due to the lack of transport, it nevertheless authorized the dismissal. The complainant provides excerpts of this decision. The BWI then explains that the local union SP Kahutindo was established at PT Musim Mas oil palm plantation and processing plant in October 2004 and was registered on 9 December 2004. The union had 1,183 members out of a total workforce of 2,000, including 300 contract workers. The following events led to the lodging of the complaint.
2. 933. On 15 January 2005, Mr. Marlin Sutari, member of the SP Kahutindo, was beaten up by his supervisors, including the Chief of Security, Mr. Sanusi Hasibuan. When Mr. Sutari attempted to defend himself, he was taken to the local police station and charged with assault on the person of Mr. Hasibuan. Contrary to regulations, Mr. Sutari’s family was not informed of his arrest and detention. Mr. Sutari lodged a complaint with the police regarding the assault by Mr. Hasibuan and his associates, but the police never gave a follow-up to his complaint.
3. 934. Throughout January 2005, the requests of the SP Kahutindo officers to have union leave to attend to various union duties, including meetings at the local Manpower Office, were ignored by the management of PT Musim Mas, which refused to recognize the union. At first, it made deductions from their salaries for attending trade union activities and then, transferred these workers to new jobs. On 14 February 2005, the SP Kahutindo requested an intervention by the Riau province Department of Manpower to compel PT Musim Mas to cease the intimidation, harassment and punitive transfer of union officers that occurred in January 2005, but to no avail.
4. 935. On 19 February 2005, PT Musim Mas requested an authorization for dismissal of Mr. Robin Kimbi, the SP Kahutindo’s Chairperson on grounds of absenteeism (his dismissal was approved by the P4D on 28 July 2005).
5. 936. The complainant further alleges that along with Mr. Robin Kimbi and Mr. Hadi Surya, two other SP Kahutindo officers, Mr. J. Siallagan and Mr. Lambok Siallagan, were dismissed by the company and five other trade union officers were forced to resign in February 2005. On 24 February 2005, the trade union once again made a formal request for an intervention by the local Manpower Office in the matter of the dismissed workers. As previously, no response was ever received. In April 2005, after serving the company and the local authorities with due notice, the SP Kahutindo’s members went on strike demanding the reinstatement of their dismissed union leaders and respect for the minimum labour standards.
6. 937. On 13 June 2005, the Pelalawan Manpower Office, following field visits to PT Musim Mas to investigate working conditions at the request of the local parliament, issued a letter addressed to PT Musim Mas calling upon the management of the enterprise to respect minimum labour standards. However, the management ignored the appeal of the Manpower Office and a second strike took place from 1 to 5 August. On 5 August, following negotiations between PT Musim Mas management and the leaders of the SP Kahutindo, the Pelalawan Manpower Office issued a statement calling upon the workers to return to work and the company to accept their return without intimidation. On 10 August, the trade union and the management signed an agreement recognizing the legality of both strikes and dealing with the dismissals of another nine trade union members that had occurred since February. The complainant submits copies of these three documents.
7. 938. On 22 August 2005, the Manpower Office ordered PT Musim Mas for the second time to implement minimum labour standards with regard to annual, maternity and sick leave, working hours and overtime and occupational safety. On 6 September, following the management’s refusal to comply with the order, the SP Kahutindo once again lodged a notice of intention to strike.
8. 939. On 9 September 2005, in spite of specific recommendations by the local parliament that PT Musim Mas recognize and negotiate with the SP Kahutindo and the ruling of the Manpower Office of 13 June, the company concluded an agreement on the upcoming annual leave with the SP MM, without involving or informing the SP Kahutindo. After the PT Musim Mas management’s clear demonstration of bad faith and learning of the company’s intention to bring in replacement workers for the planned strike, the SP Kahutindo decided to bring the date of the strike forward to 13 September. Over 1,000 workers participated in the strike. At 10 a.m., PT Musim Mas brought in 100 newly hired replacement workers. On the following day, a company truck drove into the picket line, injuring two union members. When workers tried making a police report, the police requested medical proof of the injuries suffered. However, when the workers returned to the hospital for their medical records, they found that their records were already in the enterprise’s possession. The police therefore refused to process the workers’ complaint.
9. 940. On 15 September, a crowd of workers pushed the refinery gate off of its rails. The company’s management lodged a complaint with the police naming five SP Kahutindo leaders (Messrs. Robin Kimbi, the Chairperson of the union, Safrudin and Akhen Pane, the two Vice-Chairpersons, Suyahman, the union secretary, and Masri Sebayang, the secretary of a branch union) as being responsible for the damage to the gate. A few hours later, the five leaders were invited by the police to enter the refinery’s office under the pretext that the management wished to negotiate. However, as soon as they had entered the office, they were arrested by the police, taken to the police station and later charged with violation of article 170 of the Criminal Code.
10. 941. On 16 September, the remaining demonstrators were forcibly removed by the police and were not allowed to return to their homes on the company housing estate. The complainant adds that on 18 October, a sixth trade union officer, Vice-President Mr. Sruhas Towo, was arrested, charged and detained along with the five other trade union leaders in Bangkinang prison. Five of the six arrested trade union leaders were convicted of crimes against public order for causing damage to persons or property and sentenced to prison terms ranging from between 14 months and two years. The sixth person was undergoing trial on the same charges.
11. 942. On 22 September 2005, the company initiated dismissal proceedings against 701 workers, which were officially authorized by the P4D on 16 December. On 26 December, the company employed armed local and paramilitary police to forcibly evict workers and their 1,000 family members, including about 350 children from the plantation housing estate; 300 children were expelled from the plantation schools.
12. 943. The complainants consider that the above chronology demonstrates that PT Musim Mas consistently refused to recognize or negotiate with unions other than the union established by the management itself. Officers and members of independent unions, first the SBSI and later, the SP Kahutindo, as well as workers who refused to join the SP MM, were intimidated, harassed, transferred from their posts and, in some cases, dismissed. Despite these clear violations of workers’ rights, instead of fulfilling its obligations to uphold respect for freedom of association and the right to collective bargaining, the Pelalawan District Manpower Office ignored the SP Kahutindo’s repeated complaints of harassment of union officials. Only after the intervention of the local District Parliament (which also reacted only following the strike and demonstration outside the Parliament buildings) did the District Manpower Office undertake to investigate conditions at PT Musim Mas. They found several breaches of basic labour standards. Rather than ensuring that its rulings of 13 June and 22 August were implemented by the enterprise, the Chief of the District Manpower office joined instead the Riau Provincial Manpower Department Chief in absolving PT Musim Mas of any wrongdoing in the joint public statement on 24 October 2005.
13. 944. Furthermore, according to complainants, the P4D and the Central Labour Dispute Settlement Committee (P4P) have played their usual role in legitimizing employer’s attacks on trade unions, by consistently rubberstamping the dismissals of the SP Kahutindo leaders and trade union members. The local police has also been complicit in many of the events involving violation of freedom of association and the right to collective bargaining and has failed to investigate or refused to process complaints of violence by the company made by the SP Kahutindo members.
14. 945. The union leaders were repeatedly denied bail, despite the relatively minor nature of the offences with which they were charged. During the trial of the five union leaders, the prosecution argued that the five union leaders “and 1,000 other workers” pushed down the gate, which in turn caused minor injuries to two persons. At no point in his submission did the prosecutor prove, or even allege, that the actions of the five union leaders, and their actions alone, led to the gate being derailed and pushed over. Rather than arrest and prosecute all 1,000 workers for their actions in pushing the gate over, the police, the Public Prosecutor and the Bangkinang State Court judges chose to hold the six union leaders individually responsible. They were charged and sentenced for their union activity and their role as union leaders.
15. 946. Despite repeated appeals by the FSP Kahutindo, the BWI and the IUF, the central Ministry of Manpower has failed to intervene and protect the freedom of association and collective bargaining rights of the PT Musim Mas workers and their trade union leaders. They therefore urge the Government of Indonesia to undertake appropriate measures to resolve this case in a manner consistent with its obligations as a signatory of Conventions Nos. 87 and 98, by ensuring the immediate and unconditional release of the six trade union officials and the dropping of all charges against them, as well as a transparent investigation into the actions of the local authorities and police. The Government must also act to guarantee the safety and security of the trade union leaders after their release and to ensure the immediate reinstatement of the 701 union members and their families’ return to plantation housing and schools.
16. 947. In communications of 19 and 27 June 2006 received respectively from the BWI (jointly with the IUF) and the ICFTU, the complainant organizations allege that on 7 June 2006, the company agreed to pay a group of 211 workers US$123 (the equivalent of six weeks’ salary), in return for which the workers dropped their right to appeal the illegal dismissals and agreed to call upon the BWI to drop the ILO complaint. Part of this so-called “settlement” involved a separate written renunciation by the six prisoners of their right to appeal their criminal convictions to the Indonesia Supreme Court. The BWI and the ICFTU consider that this “settlement”, which seeks to legitimize mass retaliatory dismissals and brutal repression and to criminalize trade union activity, brings no justice to the dismissed workers or to the prisoners. Therefore, the BWI, the IUF and the ICFTU strongly reject the terms of this “settlement” and question the legitimacy of the circumstances behind its negotiation and of the agreements with the imprisoned trade union leaders.
17. B. The Government’s reply
18. 948. In its communication dated 17 March 2006, the Government states that an inspection conducted by the labour inspector on 11 and 12 November 2005 revealed that 2,016 persons were employed at PT Musim Mas. Four trade unions were established within the company, namely: the PUK SPSI NIBA, the FKUI SBSI, the SP Musim Mas (SP MM) and the SP Kahutindo. Mr. Robin Kimbi, the Chairperson of the SP Kahutindo was dismissed for exercising activities in contravention of the company rules, following three warning notices served to him. His dismissal was legalized by the Regional Dispute Settlement Committee’s (P4D) decision dated 28 July 2005. A copy of this decision was served on him on 20 August and on 6 September 2005, Mr. Robin Kimbi filed an appeal to P4P. On 7 October 2005, the P4P rejected his appeal as the 14-day time limit to file an appeal had expired. To express their solidarity, about 701 workers of PT Musim Mas went on strike alleging violation by the company of minimum labour standards and forced the management of the enterprise to re-employ Mr. Robin Kimbi. The management requested workers to return to work. Faced with their refusal, the management decided to recruit new employees and proceeded to process the dismissal of 701 workers before the P4P. Furthermore, during the strike on 15 September 2005, some workers caused damage to the company’s property, some office employees were injured and, as a consequence, the whole palm oil refinery stagnated. The local police had taken some measures to overcome the chaos by arresting five trade union leaders, namely Messrs. Robin Kimbi, Masri Sebayang, Suyahman, Akhen Pane and Safrudin.
19. 949. The Government further indicates that an inspection carried out on 14 and 15 November 2005 by the Provincial House of Representatives and the Provincial and Regional Manpower Offices concluded that the company did not violate the minimum labour standards.
20. 950. On 3 February 2006, the Judge Board of the Regional Court found the five arrested trade union leaders guilty of causing injuries to persons and damaging the company’s property. Mr. Masri Sebayang and Mr. Robin Kimbu were sentenced to two years in prison. Mr. Suyahman, Mr. Akhen Pane and Mr. Safrudin were sentenced to 14 months. The Government points out that it is not allowed to interfere with the court decision.
21. 951. In its communication dated 2 June 2006, the Government indicates that while PT Musim Mas did turn down the request of the SP Kahutindo to amend the still valid collective labour agreement negotiated with the SP MM, representing over 50 per cent of the workforce, it has never had any objections to the establishment and to the existence of the SP Kahutindo. The Government also denies that a rival “yellow” trade union was established by the management and indicates that before the establishment of the SP Kahutindo, three other trade unions, all established according to the legislation in force, were already active at the enterprise.
22. 952. As to the alleged non-renewal of 300 contracts, the Government indicates that PT Musim Mas employs 2,000 workers under undetermined period of time working contracts and does not employ workers under contracts of determined periods of time.
23. 953. By its communication of 20 July 2006, the Government informs that the two parties, the SP Kahutindo and PT Musim Mas, have reached a settlement agreement, witnessed by the local government, which resolved the dispute between them. The Government provides the following details in this respect. The case on the dismissal of 701 workers has been decided by the P4P on 6 December 2005, and has been settled by both parties through collective agreement on 7 June 2006. Pursuant to the same verdict of the P4D, Messrs. Masri Sebayang, Robin Kimbu, Suyahman, Akhen Pane and Safrudin sentenced to imprisonment by the District Court of Bangkinang decision of 3 February 2006 (as confirmed by the High Court of Riau on 18 April 2006), as well as Mr. Sruhas Towo, sentenced to imprisonment by the District Court of Bangkinang decision of 17 March 2006, received compensation. Furthermore, there was a settlement agreement between PT Musim Mas and these workers, according to which, the criminal case has been processed and decided by the courts. It was therefore considered that the dispute between PT Musim Mas and the SP Kahutindo was now settled.

C. The Committee’s conclusions

1. 954. The Committee notes that the complainants in this case, the Building and Wood Workers’ International (BWI), the International Union of Food, Agricultural, Hotel, Restaurant, Catering, Tobacco and Allied Workers’ Associations (IUF) and the International Confederation of Free Trade Unions (ICFTU), allege systematic violation by the management of PT Musim Mas of the freedom association and collective bargaining rights of the All-Indonesian Federation of Wood, Forestry and General Workers’ Union (SP Kahutindo), the BWI’s affiliate.
2. 955. In particular, the complainants allege that the enterprise management refused to recognize the SP Kahutindo, preferring to deal with the Musim Mas Workers’ Union (SP MM), a “yellow” union. The complainants also allege that trade union leaders were constantly denied union leave to attend various trade union duties. The Government for its part, merely refutes this information by indicating that the SP MM, along with two other unions, existed at the enterprise prior to the establishment of the SP Kahutindo and that the SP MM could in no way be considered as a “yellow” union. The Government adds that while on one occasion, the enterprise management did deny the SP Kahutindo’s request to change the terms of a collective agreement, the refusal was based on the fact that this collective agreement negotiated with the SP MM, the union representing over 50 per cent of workers, was still valid. The Committee must note, however, that the complainants claim that the SP Kahutindo represented 1,183 of the 2,000 workers at the workplace, a claim, which the Government has not directly refuted. In these circumstances, it is unclear to the Committee which union is the most representative union for collective bargaining purposes. It requests the Government to provide information in this respect, in particular as to the precise representation of both the SP MM and the SP Kahutindo at the time that the bargaining was taking place.
3. 956. The complainants have also alleged that the members of the SP Kahutindo suffered intimidation and harassment. By way of example, they refer to the case of Mr. Marlin Sutari, who was beaten up by his superiors and the Chief of Security, and subsequently arrested and charged himself with assault. Although he filed a complaint, it was never followed up. The complainants also allege that the SP Kahutindo trade union members suffered salary deductions for attending trade union activities, transfers to new jobs, dismissals and forced resignations. The BWI forwards excerpts of the P4D decision confirming the dismissal of Mr. Hadi Surya who allegedly was among four workers transferred to a new post, situated about 15 km from his house, and later dismissed for absenteeism, as a retaliation measure against his refusal to sign a document stating that he was a member of the SP MM.
4. 957. The Committee notes the excerpts of the P4D decision in the case of Mr. Hadi Surya, which, while authorizing the dismissal, also appears to find that the rotation was “improper because the distance between the post where the employee was to work and employee’s place of residence was roughly 15 km and the employee walked this distance as the employer did not provide transport, and so it was natural that the employee did not report to work as hoped by the employer”. The P4D finding, however, that there was no longer “harmonization” between the employee and the employer, authorized the dismissal but obliged the employer to pay double compensation. Noting that Mr. Surya has alleged that his transfer was due to his refusal to join the SP MM, an element apparently not examined by the P4D in its review of the dismissal, the Committee recalls that workers shall have the right to join organizations of their own choosing without any interference from the employer and emphasizes the importance that it attaches to the fact that workers and employers should in practice be able to establish and join organizations of their own choosing in full freedom [see Digest of decisions and principles of the Freedom of Association Committee, 4th edition, 1996, para. 274]. The Committee requests the Government to conduct an independent investigation into these allegations of retaliation and if they are found to be true, to provide appropriate redress for the damages suffered, including through the possible reinstatement of Mr. Surya.
5. 958. The Committee notes that the Government has not provided any contradictory information in respect of the following further events related by the complainants. Following several unfruitful appeals to the authorities, members of the SP Kahutindo, went on strike in April 2005 to contest the violation of trade union rights and minimum labour standards. On 13 June 2005, the Manpower Office instructed PT Musim Mas to redress several violations of labour rights. However, in light of the management’s unwillingness to do so, another strike took place from 1 to 5 August 2005. Following a statement issued by the Manpower Office, the trade union and the management of the enterprise signed an agreement on 10 August recognizing the legality of both strikes and dealing with the dismissals of nine trade union members. On 22 August 2005, the Manpower Office once again instructed PT Musim Mas to respect certain labour rights. On 6 September, following the management’s refusal to comply, the SP Kahutindo once again lodged a strike notice. Learning of the company’s intention to hire replacement workers, the union began the strike on 13 September. The complainant reports that 100 replacement workers were hired by the company. During the course of the strike, two trade union members were injured as a company truck drove through the picket line. Unable to get hold of the medical proof of their injuries and hospitalization, which appeared to be in the company’s hands, these two workers were unable to lodge a complaint.
6. 959. On 15 September, the crowd of workers pushed the refinery gate off of its rails. The company’s management lodged a complaint with the police naming five SP Kahutindo leaders (Messrs. Robin Kimbi, the Chairperson of the union, Safrudin and Akhen Pane, the two Vice-Chairpersons, Suyahman, the union secretary, and Masri Sebayang, the secretary of a branch union) as being responsible for the damage to the gate. A few hours later, the five leaders were arrested by the police, taken to the police station and later charged with violation of article 170 of the Criminal Code. On 16 September, the remaining demonstrators were forcibly removed by the police and were not allowed to return to their homes on the company housing estate. On 18 October, a sixth trade union officer, the Vice-President Mr. Sruhas Towo, was arrested, charged and detained along with the five other trade union leaders in Bangkinang prison. All six trade union leaders have been convicted of crimes against public order for causing damage to persons or property and sentenced to prison terms ranging from between 14 months and two years. In this respect, the Committee recalls that the principles of freedom of association do not protect abuses consisting of criminal acts while exercising the right to strike. It further recalls that penal sanctions should only be imposed as regards strikes where there are violations of strike prohibitions which are themselves in conformity with the principles of freedom of association. All penalties in respect of illegitimate actions linked to strikes should be proportionate to the offence or fault committed and the authorities should not have recourse to measures of imprisonment for the mere fact of organizing or participating in a peaceful strike [see Digest, op. cit., paras. 598 and 599].
7. 960. On 22 September 2005, the company initiated dismissal proceedings against 701 workers, which were officially authorized by the P4D on 16 December. On 26 December, the company employed armed local and paramilitary police to evict workers and their 1,000 family members, including about 350 children from the plantation housing estate; 300 children were expelled from plantation schools. While the complainants also allege the non-renewal of the labour contracts of 300 workers, the Government refutes this allegation by stating that the company did not employ fixed-term contract workers.
8. 961. The Committee further notes that a settlement agreement was reached between PT Musim Mas and the SP Kahutindo on 7 June 2006. According to the information provided by the complainants, the company agreed to pay a group of 211 workers US$123 (the equivalent of six weeks’ salary), in return for which the workers dropped their right to appeal the illegal dismissals and agreed to call upon the BWI to drop the ILO complaint. Part of this settlement involved a separate written renunciation by the six prisoners of their right to appeal their criminal convictions to the Indonesia Supreme Court. According to the Government, these six trade union leaders also received compensation in accordance with the December 2005 decision of the P4D on the dismissal of 701 workers. The Government further indicates that according to the terms of the settlement agreement, the criminal case against the six trade union leaders being already decided by the courts, the dispute between PT Musim Mas and the SP Kahutindo was now considered settled.
9. 962. The Committee notes that while the Government considers that the dispute between the SP Kahutindo and PT Musim Mas is now resolved, the BWI, the IUF and the ICFTU consider that this “settlement” seeks to legitimize mass retaliatory dismissals and brutal repression, criminalizes trade union activity and brings no justice to the dismissed workers or to the prisoners. These organizations therefore strongly reject the terms of this settlement and question the legitimacy of the circumstances behind its negotiation and of the agreements with the imprisoned trade union leaders.
10. 963. The Committee regrets that neither the complainants nor the Government provide a copy of the said settlement agreement. Furthermore, the Committee notes that while the complainants question the legitimacy of the agreement and the circumstances of its negotiation, they do not provide any details to assist the Committee’s understanding in this regard. It is, however, unclear from the information received whether the agreement was signed on behalf of all 701 dismissed workers or only 211, the number referred to by the complainant. The Committee therefore requests the Government and the complainants to provide information in this respect and a copy of the agreement. In addition, the Committee is particularly concerned, in light of the serious allegations in this case, about the purported settlement agreement with the imprisoned union leaders who are apparently serving out sentences of up to two years in prison for having derailed the enterprise gate. The Committee requests the Government to carry out an independent investigation immediately into the circumstances under which this agreement was reached and to report back on the outcome. As regards the allegation of the non-renewal of 300 labour contracts following the strike action, the Committee requests the complainants to provide additional information in response to the Government’s assertion that there are no fixed-term contracts at PT Musim Mas.
11. 964. The Committee expresses its concern over the number of serious allegations related to the events at PT Musim Mas to which the Government has not replied other than referring to the settlement agreement. It refers in particular to the allegations of assault on Mr. Sutari and his complaint in this respect which was allegedly not followed up by the police, the violent intervention by the police and the employer during the course of the strike, leading to the injury of two workers, the hiring of replacement workers by the employer during the strike, the dismissal of 701 workers who participated in the strike and finally, the allegation that numerous complaints and requests for intervention submitted to the authorities to remedy violations of trade union rights by the enterprise were left unanswered or were not followed through.
12. 965. As concerns the allegation of physical assault on Mr. Sutari, the Committee requests the Government to institute immediately an independent judicial inquiry into this allegation with a view to fully clarifying the facts, determining responsibility, punishing those responsible and preventing the repetition of such acts. It requests the Government to keep it informed in this respect.
13. 966. With regard to the strike carried out by the trade union in September 2005, the Committee draws the attention of the Government to the following principles.
14. With regard to the complainant report that 100 replacement workers were hired by the company:
15. n The hiring of workers to break a strike in a sector which cannot be regarded as an essential sector in the strict sense of the term, and hence one in which strikes might be forbidden, constitutes a serious violation of freedom of association if the strike is legal, recourse to the use of labour drawn from outside the undertaking to replace the strikers entails a risk of derogation from the right to strike, which may affect the free exercise of trade union rights [see Digest, op. cit., paras. 570 and 571].
16. With regard to the police intervention during the strike and the forcible removal of demonstators:
17. n The authorities should resort to calling in the police in a strike situation only if there is a genuine threat to public order. The intervention of the police should be in proportion to the 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 [see Digest, op. cit., para. 582].
18. With regard to the dismissals of workers who participated in the strike:
19. n No one should be penalized for carrying out a legitimate strike. The dismissal of workers because of a strike, which is a legitimate trade union activity, constitutes serious discrimination in employment and is contrary to Convention No. 98 [see Digest, op. cit., paras. 590, 591 and 597].
20. 967. The Committee expects that the Government will ensure full respect for these principles in the future. The Committee requests the Government to carry out an independent inquiry without delay into the conduct of the various parties during the strike action including the allegations of injuries suffered by two workers when a company truck drove through the picket line, with a view to fully clarifying facts, determining responsibility, punishing those responsible and preventing the repetition of such acts. It requests the Government to keep it informed in this respect.

The Committee's recommendations

1. 968. In the light of its foregoing interim conclusions, the Committee invites the Governing Body to approve the following recommendations:
   • (a) The Committee requests the Government to provide information on the precise representation of both the SP MM and the SP Kahutindo at the time that the bargaining was taking place.
   • (b) The Committee requests the Government to conduct an independent investigation into the allegations of anti-union dismissal of Mr. Surya and if they are found to be true, to provide appropriate redress for the damages suffered, including through his possible reinstatement.
   • (c) The Committee requests the Government and the complainants to clarify whether the settlement agreement was signed on behalf of all 701 dismissed workers or only 211, the number referred to by the complainant, and to provide a copy thereof. In addition, the Committee requests the Government to carry out an independent investigation immediately into the circumstances under which the settlement agreement with the imprisoned union leaders was reached and to report back on the outcome.
   • (d) As regards the allegation of the non-renewal of 300 labour contracts following the strike action, the Committee requests the complainants to provide additional information in response to the Government’s assertion that there are no fixed-term contracts at PT Musim Mas.
   • (e) As concerns the allegations of physical assault on Mr. Sutari, the Committee requests the Government to institute immediately an independent judicial inquiry into these allegations with a view to fully clarifying the facts, determining responsibility, punishing those responsible and preventing the repetition of such acts. It requests the Government to keep it informed in this respect.
   • (f) The Committee draws the attention of the Government to the following principles:
     • With regard to the complainant report that 100 replacement workers were hired by the company:
       • - The hiring of workers to break a legal strike in a sector, which cannot be regarded as an essential sector in the strict sense of the term, constitutes a serious violation of freedom of association.
     • With regard to the police intervention during the strike and the forcible removal of demonstrators:
       • - The authorities should resort to calling in the police in a strike situation only if there is a genuine threat to public order. The intervention of the police should be in proportion to the 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.
     • With regard to the dismissals of workers who participated in the strike:
       • - No one should be penalized for carrying out a legitimate strike. The dismissal of workers because of a strike, which is a legitimate trade union activity, constitutes serious discrimination in employment and is contrary to Convention No. 98.
     • With regard to the sentencing of six trade union leaders to between 14 months and two years’ imprisonment for causing damage to persons or property:
       • - The principles of freedom of association do not protect abuses consisting of criminal acts while exercising the right to strike. It further recalls that penal sanctions should only be imposed as regards strikes where there are violations of strike prohibitions which are themselves in conformity with the principles of freedom of association. All penalties in respect of illegitimate actions linked to strikes should be proportionate to the offence or fault committed and the authorities should not have recourse to measures of imprisonment for the mere fact of organizing or participating in a peaceful strike.
     • (g) The Committee requests the Government to carry out an independent inquiry without delay into the conduct of the various parties during the strike action, including the allegations of injuries suffered by two workers when a company truck drove through the picket line, with a view to fully clarifying the facts, determining responsibility, punishing those responsible and preventing the repetition of such acts. It requests the Government to keep it informed in this respect.