Effect given to the recommendations of the committee and the Governing Body - Report No 388, March 2019

Case No 3176 (Indonesia) - Complaint date: 08-DEC-15 - Closed

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

1. 38. The Committee last examined this case in which the complainant alleged the violation of the right to organize peaceful public demonstrations and a national strike, at its October 2016 meeting [see 380th Report, approved by the Governing Body at its 328th Session, paras 590–634]. On that occasion, the Committee made the following recommendations [see 380th Report, para. 634]:
   • (a) The Committee requests the Government to review the situation of the 23 workers in light of the principles set out in its conclusions with a view to dropping any remaining charges and to keep it informed of any developments in this respect.
   • (b) The Committee requests the complainant to provide further information in relation to its allegation that the police occupied the branch office of the KSPI in North Jakarta, in view of the Government’s reply.
   • (c) The Committee requests the Government to institute independent inquiries into all alleged acts of violence with a view to fully clarifying the facts, determining responsibility, punishing those responsible and preventing the repetition of such acts and to ensure appropriate compensation for any damages suffered. It requests the Government to keep it informed in this respect.
   • (d) Noting the Government’s indication that it is currently seeking clarification from the management of the PT. DMCTI in Jababeka, Bekasi, regarding the allegation that workers were forced into signing statements declaring that they will not participate in the strike, the Committee requests the Government to keep it informed in this respect and further expects that the allegation of dismissal of 75 workers following their participation in the industrial action will be fully investigated and the appropriate remedial action taken.
2. 39. The Government provides its observations in communications dated 7 November 2017 and 24 October 2018. In particular, it informs that the Central Jakarta District Court had decided that the 23 workers against whom criminal charges were pending following the events of October 2015 are now free of charges and that, after verification, the Confederation of Indonesian Trade Unions (KSPI) does not seem to have a branch office in North Jakarta.
3. 40. With regard to the alleged acts of violence by the police in handling protesting workers, the Government states that it had conducted an investigation on the issues raised by the complainant, the results of which were communicated to the Direct Contacts Mission in October 2016. The results show that the procedural steps carried out by the police in handling the demonstrations in front of the Presidential Palace and other locations had been conducted in accordance with the procedures set out in Police Regulation No. 16 of 2006 on guidelines and procedures of mass control and the Head of National Police Regulation No. 7 of 2012 on procedures for organizing service, security and case management of expressing opinion in public. The Government adds that if a report is submitted alleging abuse of authority by police personnel or actions in violation of the applicable procedures, such complaints are processed and the concerned personnel sanctioned. However, so far, no such complaints or reports were submitted to the Division of Professionalism and Security of National Police.
4. 41. As regards the allegation that workers at the PT. DMCTI in Jababeka industrial area in Bekasi were forced into signing statements declaring that they would not participate in the November 2015 strike, the Government indicates that, according to the company, the demonstrations were not directly related to the working relationship between the employees and the management but rather constituted a form of protest against the Government over the issuance of Regulation No. 78 of 2015 concerning wages and that the management had never forced its workers to sign an agreement not to take part in the strike. Furthermore, the Government provides the following clarification obtained from the company: (i) on 23 November 2015, the management issued an appeal to the workers not to participate in the national strike as it was not the kind of strike stipulated in Law No. 13 of 2003 on Manpower and would harm the company; (ii) the Chairperson of the Federation of Indonesian Metal Workers Union (FSPMI) requested permission from the management to take part in the demonstration on 24 November from 8 a.m. to 4 p.m., which was granted to those workers working during the first shift (from 8 a.m. to 4 p.m.), however, workers from the second and third shifts also participated in the demonstration resulting in the inability of the company to operate for four days (on 24 November, the Chairperson and the Secretary of FSPMI did not participate in the demonstration); (iii) on 25–27 November, workers provoked and intimidated colleagues to stop working, as a result of which the management conducted daily calls for workers to return to work; (iv) although some workers were willing to work, they were prevented from doing so by the striking workers; (v) on 28 November, many workers returned to work but 75 workers insisted on not working, they were summoned back to work and told that those who refused would be considered as having resigned and would be paid severance pay according to Law No. 13 of 2003 on Manpower; (vi) on the same day, a meeting was conducted between the company and two representatives of workers – Mr Wismon, Chairman of PUK SPEE FSPMI (union at factory level) and Mr Setiawan, Vice-Chairman of Division III/Legal – to discuss the impact of the strike on the company and the termination of 75 workers; (vii) on 28 and 30 November 2015, the management issued a decision to lay off 75 workers as they had violated section 66(f) and (g) of the Collective Labour Agreement between the company and PUK SPEE FSPMI (section 66(f) stipulates that workers must be in the working area during office hours and section 66(g) states that every worker is prohibited from being in a cooperative, canteen area, mosque (except for praying), kitchen, smoking area and outside of working area during working hours, unless there is a permission from his/her employer/supervisor); (viii) in 2017, the Industrial Relations Court declared that out of the 75 workers, nine should be reinstated in the same position with payment of their wages and other rights; (ix) according to the latest information, termination of the 75 workers was finally completed through a collective agreement (71 workers including the Chairperson and the Secretary of the FSPMI) and the Industrial Relations Court (4 workers); and (x) those workers who filed a lawsuit to the Industrial Relations Court at the K1 I.A. Bandung are yet to receive their rights as the management is awaiting the decision of the Supreme Court.
5. 42. The Committee notes the updated information provided by the Government. In particular, it welcomes the Government’s indication that the criminal charges pending against 23 workers who had participated in the October 2015 events were dropped.
6. 43. In view of the Government’s repeated assertion that the KSPI branch office in North Jakarta does not seem to exist, and in the absence of further details from the complainant in relation to its allegation that the police occupied the mentioned branch office (despite the Committee’s request to provide such information), the Committee will not pursue the examination of this allegation.
7. 44. The Committee further notes the Government’s statement that the results of the investigation into the issues raised by the complainant showed that, when handling the demonstrating workers, the police acted in line with the applicable regulations, and that no complaints have so far been submitted concerning abuse of authority by the police. The Committee observes, however, that in its observations, the Government only refers to police actions and does not indicate whether the allegations of threats, violence and intimidation conducted by hired thugs (see 380th Report, paras 595, 597 and 600) were also investigated. The Committee wishes to recall in this regard that the rights of workers’ and employers’ organizations can only be exercised in a climate that is free from violence, pressure or threats of any kind against the leaders and members of these organizations, and it is for governments to ensure that this principle is respected. Facts imputable to individuals bring into play the State’s responsibility owing to the State’s obligation to prevent violations of human rights. Consequently, governments should endeavour to meet their obligations regarding the respect of individual rights and freedoms, as well as their obligation to guarantee the right to life of trade unionists [see Compilation of decisions of the Committee on Freedom of Association, sixth edition, 2018, paras 84 and 91]. In view of the above, the Committee requests the Government to indicate whether the allegations of threats, violence and intimidation of demonstrating workers by hired thugs were thoroughly investigated and any measures taken as a result, and if it is not the case, to institute independent inquiries into the alleged acts of violence, so as to determine responsibility, punish those responsible, prevent the repetition of such acts and ensure appropriate compensation for any damages suffered. The Committee trusts that the Government will take measures to ensure that, in the future, freedom of association can be exercised in conditions in which fundamental human rights are fully respected.
8. 45. Finally, the Committee notes the detailed information transmitted by the Government from the company management in Bekasi regarding the allegation that its employees were forced to sign an agreement not to participate in the November 2015 national strike, as well as on the circumstances leading to the termination of 75 workers following their participation in the strike. While recalling that organizations responsible for defending workers’ socio economic and occupational interests should 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 standards of living [see Compilation, op. cit., para. 759], the Committee understands, from the information provided, that the termination of 71 out of 75 workers, including the Chairperson and the Secretary of the FSPMI, was completed through the conclusion of a collective agreement and that the cases of four more workers are currently pending before the Supreme Court. The Committee trusts that the conclusion of the collective agreement will contribute to ensuring harmonious labour relations in the company and requests the Government to keep it informed of the outcome of the pending cases relating to the termination of four workers. The Committee considered that the case did not call for further examination and closed the case.