Effect given to the recommendations of the committee and the Governing Body - Report No 364, June 2012

Case No 2754 (Indonesia) - Complaint date: 13-DEC-09 - Closed

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

1. 59. The Committee examined this case at its March 2011 meeting and on that occasion made the following recommendations [see 359th Report, para. 683]:
   • (a) The Committee requests the Government to provide information on the present employment status of Mr Muchlish, indicating whether he is still exercising his functions as Chairperson of the SEKAR–DPS and, if so whether he is granted access to the PT. DPS to enable him to carry out his representative function.
   • (b) Noting the divergent views of the complainant and the enterprise set out in the Government’s reply concerning the motivation for the transfer of Mr Muchlish, the Committee requests that the Government encourage dialogue between the union and the enterprise on the employment status of Mr Muchlish including, but not limited to, the possibility of rehiring him in another post, should he so desire and should this be practicable.
   • (c) The Committee requests the Government to keep it informed on any follow-up to the recommendation of the mediator of the Manpower Office of Surabaya City to the effect that the company revoke the suspension of Mr Arie Wibowo, General Secretary of the SEKAR–DPS, and 16 other members of the union committee and pay back wages.
   • (d) As regards the indication from the Government that a negotiation is ongoing in the company concerning the reinstatement of the eight dismissed workers, the Committee requests the Government to make efforts to bring about a negotiated solution to this matter, particularly given the fact that, according to the Government, they were fired for having undertaken demonstrations in reaction to the firing of their Chairperson and for not changing their attitude, and in a context where, according to the complainant but not refuted in the Government’s reply, attempts to discuss the matter in dispute went unanswered by the management. The Committee requests the Government to keep it informed of any progress made in this regard.
   • (e) The Committee requests the Government and the complainant to indicate whether the SEKAR–DPS is still organizing activities at the PT. DPS.
   • (f) The Committee urges the Government to take steps, in full consultation with the social partners concerned, to amend its legislation to ensure comprehensive protection against anti-union discrimination in the future, providing for swift recourse to mechanisms that may impose sufficiently dissuasive sanctions against such acts. The Committee requests the Government to keep it informed in this regard.
2. 60. In its communication dated 26 October 2011, the Government provides the following information obtained during a meeting which took place on 15 September 2011 between the Ministry of Manpower and Transmigration, Manpower and Transmigration Office of East Java province, and Manpower and Transmigration Office of Surabaya City. Mr Muchlish, not satisfied with the decision of the Industrial Relations Court dated 20 August 2010, filed an appeal with the Supreme Court. However, following a meeting with the management of the PT. Dok Dan Perkapalan Surabaya (PT. DPS), an agreement has been reached between Mr Muchlish and the company. Pursuant to this agreement, Mr Muchlish withdrew the appeal pending before the Supreme Court, as both parties agreed to resolve the dispute through an amicable settlement, and not to press any charges in the future, whether under the penal or the civil law. The Government recalls that pursuant to the 2010 decision of the Industrial Relations Court, Mr Muchlish was dismissed from the PT. DPS; therefore he is no longer the Head of the SEKAR–DPS.
3. 61. The Government further indicates that the Manpower and Transmigration Office of Surabaya City has conducted mediation between the management of the company and Mr Arie Wibowo and the other eight workers. However, as the discussion reached a dead end, on 29 December 2010, the mediator issued the following suggestion: pursuant to section 156(2) of Act No. 13 in Manpower (2003), a double severance pay should be paid by the company to the workers concerned, i.e. Mr Wibowo and the other eight workers; pursuant to section 156(3) of the same Act, workers should receive a reward for the employment period and a 15 per cent reimbursement pursuant to section 156(4); in addition, the company should pay full salary to workers during the period the workers were not employed. On 25 February 2011, the management conducted a separate meeting with Mr Wibowo and the eight dismissed workers during which an agreement was reached on the following:
   • (1) both parties agree that the dismissal of workers takes effect on the day of the signing of the agreement, i.e. on 25 February 2011;
   • (2) both parties agree not to press any legal charges;
   • (3) the employer agrees and is ready to provide reference letters or statement of employment history as well as a gratification allowance in the amount agreed by both parties;
   • (4) the mutual agreement is made in good will to find the best amicable settlement allowing to maintain good communication and good relationship, without any intervention or pressure from either party.
4. 62. The Government further indicates that, while this union still exists, only several people remained to administer it.
5. 63. With regard to Act No. 21 on Labour Union (2000), the Government indicates that it is currently gathering the material and views of the social partners and independent institutions on the possible amendment of this Act.
6. 64. The Committee notes the information provided by the Government. While the Committee notes that settlement agreements have been reached with Mr Muchlish, Mr Wibowo and the other eight dismissed workers, it regrets to note that the dismissal of the SEKAR–DPS Chairperson, Mr Muchlish, and its General Secretary, Mr Wibowo, resulted in the situation, where while the union “still exists, only several people remain to administer it”, as described by the Government. The Committee further regrets that no information has been provided with regard to other workers, suspended following their participation in the October 2009 strike. The Committee recalls in this respect that a mediator of the Manpower Office of Surabaya City recommended that the suspension be revoked and back wages be paid. The Committee therefore once again requests the Government to keep it informed of any follow-up to this recommendation.
7. 65. The Committee notes the Government’s indication that it is conducting a review of Act No. 21 of 2000, the Committee expects, as it did in Case No. 2737, that the necessary steps will be taken, in full consultation with the social partners concerned, to amend its legislation to ensure comprehensive protection against anti-union discrimination, providing for swift recourse to mechanisms that may impose sufficiently dissuasive sanctions against such acts. It requests the Government to provide information on steps taken in this regard to the Committee of Experts on the Application of Conventions and Recommendations, to which it refers legislative aspects of this case.