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

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

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.