Caso individual (CAS) - Discusión: 1994, Publicación: 81ª reunión CIT (1994)

Convenio sobre el derecho de sindicación y de negociación colectiva, 1949 (núm. 98) - Indonesia (Ratificación : 1957)

The Government supplied the following information:

1. Act No. 14 of 1969 on the Basic Provisions respecting Manpower is a comprehensive law which includes industrial relations aspects. Although the provisions of the Act are still relevant in the Indonesian situation of labour standards, the Government realizes that it needs some adjustment to accommodate recent developments in industrial relations, particularly in facing the Second Long-Term Development. Therefore, the Government of Indonesia decided to review and revise the labour legislation. This programme consists of Act No. 14 of 1969 and Act No. 1 of 1951. Apart from that, the need was realized to have brand new regulations on employment and apprenticeship. So for the past five years, the Government has been working on four texts of labour legislation simultaneously. As the Government realizes that this programme is a very big job and a very delicate process, it has stated its intention to get technical assistance from the ILO.

2. The Minister of Manpower Regulation No. 01/1994 concerning Trade Unions at Company Level (SPTP) gives a wide opportunity to workers at the plant level to establish an organization with no obligation to join any particular organization. This organization will be able to bargain and negotiate a collective labour agreement with their employers.

Some provisions in this regulation stipulate the following:

Article 4(1). Workers at plant level with no fewer than 25 members may establish a workers' organization, unless there already is an existing trade union in the company concerned.

Article 17. A workers' organization at company level has the right to bargain and to negotiate a collective labour agreement based on the existing regulation.

Thus, this new regulation gives a broader opportunity to the workers at plant level whether they prefer to establish the organization under this regulation or whether they would like to join the existing trade union, i.e. SPSI.

3. The law and regulation in Indonesia guarantee workers' protection against anti-union discrimination and employer intervention in union membership. Even the 1945 constitution secures the freedom to organize and to express opinion.

4. The protection against anti-union discrimination is explicitly stated in the following:

(a) Article 8, paragraph (a) of the Minister of Manpower Regulation No. 04/1986 and Circular Letter of the Director General for Industrial Relations and Labour Standards No. 113/M/BW/1990 in which it is stated that:

The permit to terminate an employment shall not be given under the condition that the termination is conducted on the basis of the establishment or union membership.

(b)Ministerial Manpower Decree No. 438 of 1992 explained that the employer shall not take any unfavourable action towards the workers on the basis of trade union membership whether as union official or as a member of trade union.

5. Regarding the proposal to give more penalties for those who act against labour law including provision of the principle of freedom to organize, the Government declares to share this idea and it has been discussed and decided accordingly.

6. In line with the Government's intention to implement labour regulation, it has conducted law enforcement through the court.

7. The Government agrees that industrial relations mainly concern workers' and employers' interests. Therefore, in January 1994, it has withdrawn Minister of Manpower Decree No. 342 on Guidance for Conciliation in the Settlement of Industrial Disputes, particularly in facing various cases respecting overtime pay, strike, contract workers, termination of employment and the change of ownership of the company and replaced it with Minister Decree No. 15A on Guidance for the Settlement of Industrial Disputes and Termination of Employment at Company Level and Conciliation. The latest Decree replaces three Ministerial Decrees, i.e. No. 342/1984, No. 1108/1986, No. 120/1988, all of them concerning industrial dispute settlement. By doing so, the process of industrial dispute settlement in Indonesia has been simplified.

In addition, the Government representative stated that an overall review of national legislation concerning the right to organize and to bargain collectively was an enormous task. It was being undertaken with a view to coping with the need for just and democratic industrial relations. In this regard and in response to the recommendations of the direct contacts mission that had taken place from 21 to 27 November 1993, the Department of Manpower had taken some necessary measures, including a series of national seminars on employment and poverty elimination, reviewing labour laws and ways and means of implementing of the Pancasila Industrial Relations system, and on the wage system. Through these seminars, important inputs and views for the review of labour legislation were collected from related government institutions, employers, trade unions, national NGOs, universities as well as experts from other countries and the ILO. The 75th anniversary of the ILO was marked by the signing of the Memorandum of Understanding concerning the five-year programme of cooperation between the Government and the ILO, which showed the Government's full awareness of the importance of ILO technical assistance in improving the national legal system in compliance with international labour standards. Indonesia had always recognized and accepted the universal validity of basic workers' rights not only because it was a Member of the United Nations and the ILO but also because those rights were deeply rooted in the national consciousness and were embodied in the country's state philosophy and Constitution, and in its legislation. The speaker also referred to Ministerial Decrees No. 1 and No. 15A of 1994 noted in the written information submitted to the Committee, and indicated that Ministerial Decree No. 15A restated the non-involvement of the security apparatus in dealing with labour affairs or disputes. The Government was in the process of drafting a comprehensive law on strikes, which would give a clear definition on the involvement of police in the handling of demonstrations to prevent them from engaging themselves in interference in purely labour strikes. The draft law on strikes had been tabled for in-depth study to the national inter-departmental advisory committee. She also noted the Government's efforts to awaken the workers' consciousness of their rights by seriously promoting educational programmes for workers. The Government had encouraged the establishment of trade unions based on industrial sectors in order to achieve better representation and effectiveness and to meet the needs of workers. She considered that the huge number of workers with low levels of education and lack of adequate information could cause ignorance of their basic rights and stressed that, while fundamental workers' rights were indeed universal, their expression and implementation in the national context should remain the competence and responsibility of each government. The speaker noted the recent establishment of two national advisory bodies to deal with issues of fundamental human rights including workers' rights, namely the Independent National Commission on Human Rights and the Inter-departmental Committee on Human Rights. She stated that it had never been a deliberate intention or the policy of the Government to allow violations of the fundamental rights of workers, although full enjoyment of such rights remained elusive due to public ignorance. For this reason, the nationwide promotion of fundamental ILO standards had been set as the priority task of these two institutions. She concluded by confirming her Government's strong commitment to protect and promote workers' right to organize and bargain collectively with their own employers in their respective enterprises and to promote the role of trade unions within the framework of a sound and harmonious industrial relations system at every company.

The Employers' members referred to the direct contacts mission and, in particular, to the recommended measures, which were summarized in the report of the Committee of Experts. They underlined the rather positive results of this mission, and especially that the question was no longer that of principles or of fundamental gaps, but rather the question of improvement and perfection of the situation. In addition, they were pleased with the spirit of cooperation and collaboration with the ILO, which the Government demonstrated during this mission as noted in the report of the Committee of Experts. Besides, they emphasized the different approaches contained in the report and stated that, in their opinion, neither the Committee of Experts nor the Conference Committee should request the adoption of dissuasive sanctions; they should rather call for effective measures that they were able to examine. They concluded by insisting that the Government should clearly indicate the changes in practice and request necessary technical assistance of the ILO.

The Workers' members had the impression that the Government wanted to take steps forward according to the written and oral information it had provided to the Committee. Addressing themselves to the written information, they stated, as a first point, that they did not think five years would be necessary for the preparation of the four legal texts mentioned, especially if the Government benefited from the technical assistance of the ILO; as to the second point, it seemed unacceptable for them that freedom of association and the right to collective bargaining were limited to the enterprise level and that companies with fewer than 25 persons were excluded; besides, a trade union monopoly of the All Indonesia Workers' Union (SPSI) was already installed, even though plural enterprise unions could exist: the question was whether a central union could be freely established; as to points three and four, they referred to the remarks of Workers' members last year and also to the arrests of trade unionists during the previous week, and questioned how the workers were effectively protected in practice against anti-union discrimination and the intervention of the employers; as to point five, they referred to the recommendations of the direct contacts mission and requested the Government to indicate measures taken on the subject and their juridical value; as to point six, the Workers' members wondered who had access to courts and by what means; and finally, as to point seven, as to whether the contents of the new regulation contained more freedom for negotiation. In comparing the reply of the Government and the recommendations of the direct contacts mission, the Workers' members considered that there remained still much to do, even though the supplied information permitted a certain optimism. Since the practice noted was unfortunately rather discouraging, the Committee could not but make conclusions clearly requesting the necessary modifications to legislation, full information on the decisions and changes in practice declared, and hoping that a profound reform would be started and could be noted especially as concerns the recommendations of the direct contacts mission.

The Workers' member of the Netherlands, speaking also on behalf of several Workers' members, including those of Norway and Sweden, stated that the initiative of the Government to invite a direct contacts mission was a clear departure from their position in previous years that this was a minor case. It should be welcomed but the Government should now clearly commit itself to implement the recommendations of the mission and profit from the technical assistance that the ILO could provide. In addition, the situation should be followed, keeping in mind that collective bargaining should be carried out by freely chosen representatives. In this regard, the speaker recalled the situation in Indonesia, where the trade unionists had encountered difficulties in organizing themselves into independent trade union federations such as the SBSI and in expressing themselves; where collective agreements were concluded by the SPSI, a union controlled by the State and which include retired military people in its local and regional bodies; and where the police or armed forces intervened in trade union activities. Despite certain changes in legislation (and regulations) made recently, he thought that interventions were still allowed under other pieces of legislation. In conclusion, he stated that the Committee should request the Government to apply the recommendations of the direct contacts mission in their entirety and to profit from the technical cooperation of the ILO. In this regard, the conclusions of the Committee should fix a time limit - one or two years - for the detailed information to demonstrate progress made in law and practice.

The Workers' member of Japan welcomed the positive tone of the information supplied by the Government and referred to the recommendations of the direct contacts mission, in particular, the suggestion that measures should be taken to avoid to the maximum the intervention of the police and armed forces. He requested the Government's assurance in this regard.

The Government member of the United States expressed the concern that the situation in practice was far more grave than was apparent in the Committee of Experts' observations, and referred to accounts of widespread and extremely serious repression of trade unionists in Indonesia. She noted that her Government was very concerned about the worker rights situation in Indonesia and had strongly urged the Government to invite an ILO direct contacts mission. She welcomed the Government's cooperation and collaboration with the ILO direct contacts mission, as well as the positive remarks made by the Government representative. She encouraged the Government to follow up the recommendations made by the direct contacts mission with the further assistance of the ILO so as to bring the national legislation and practice into conformity with the Convention.

The Workers' member of Indonesia considered that the development of his union (the All Indonesia Workers' Union "SPSI") was now much more satisfactory and encouraging compared with 44 years ago and referred to the Declaration on the unity and integrity of Indonesian workers of 1973, which was the basis of "FBSI" that later became SPSI. He mentioned, in addition to the Ministerial Decrees No. 1 and No. 15A of 1994, Ministerial Decree No. 3 of 1993 on the registration of trade unions. He further stated that the legislation reaffirmed workers' freedom of association without Government and employer interference, and that security forces were prohibited from interfering in the industrial conflict. He also noted that the SPSI had a new structure of "federation" supported by 13 industrial sectors, some of which were affiliated to international sectoral trade unions. In addition he provided some data: the establishment of 11,484 units (compared to 11,000 in March 1993) in the approximately 40,000 companies which had permission to establish trade unions; 8,437 collective bargaining agreements signed (7,000 in March 1993), some of them in the Government-owned plantation enterprises; 2.2 million members who paid the contribution (1.9 million in March 1993). He pointed out that 80 per cent of strikes took place in companies without a trade union and that they usually concerned normative matters such as the minimum wage and the freedom to establish a trade union, while in companies that had SPSI units, demands in strikes were generally above the minimum normative level.

The Workers' member of the United States noted certain information concerning interference: the Indonesian Prosperity Trade Union "SBSI", established in April 1992, reported that the first congress was broken up by soldiers who seized their offices and the premises of the congress; despite the revocation in January 1994 of a 1986 law which allowed employers to use security forces to intervene in labour disputes, the coordinating agency for national stability continued its military intervention in labour disputes whenever it felt "security" was threatened, for example, violent interventions by the military, officers confiscating posters and banners and being ominously present at the negotiations, kidnapping of workers and arrests of trade union leaders, even very recently. He hoped that these actions would finally cease and that the military would withdraw permanently and completely from its involvement in labour matters, as recommended by the Committee of Experts.

The Workers' member of Pakistan referred to the recommendations of the direct contacts mission and emphasized that the Ministerial Decree No. 1 of 1994 should be abrogated. In addition, he supported the view expressed by the Workers' member of the Netherlands regarding collective bargaining.

The Employers' member of Indonesia, after recalling last year's discussion, informed the Committee that the workers and employers had been invited by the Government to participate in strengthening some regulations to ensure a better compliance with the Convention in response to the recommendations of the direct contacts mission, as was indicated by the Government representative. He was pleased with the Government's efforts to respond to the observations made by the Committee of Experts.

Another Government representative emphasized that there had been continuous, consistent and significant development of the condition of labour in his country, at least during the last 25 years, including the right to organize. He stated that the Ministerial Decree No. 1 of 1994 meant that there was no monopoly in the trade unions, and that there could be thousands or even ten thousand unions in the country. In less than four months after the direct contacts mission, the Government had already issued one Ministerial Decree and one Ministerial Regulation, because the elaboration of laws would take a long time. The Government was preparing for the simplification and the consolidation of the whole system with the technical assistance of the ILO. The speaker did not think that there was any contradiction in the two Ministerial decrees, which were consistent in promoting freedom of association and the right to bargain collectively with the respective employers at the plant level. He insisted that there was no trade union monopoly any more, because it was by consensus of all the leaders of workers in the early 1970s that they united themselves into one federation that is FBSI, which became SPSI. Regarding the involvement of security and military forces, he stated that even if there were some retired army personnel who held positions in the SPSI, they did not have any functional relations any more. He pointed out that distinction should be made between the industrial relations issues and the non-industrial relations issues: while the former was always the responsibility of the Ministry of Manpower, the security aspect should be considered in the latter, if there is threat to the national stability or dignity. He also considered that a worker violating laws related to industrial relations issues or something else should not be excused of being brought to court only because he was a worker. He finally confirmed that the efforts to simplify and consolidate the existing provisions would be continued and that progress should be awaited as to the measures for the implementation of the two Decrees.

The Committee took note of the detailed written and oral information provided by the Government representative and the discussion that ensued. The Committee welcomed the fact that a direct contacts mission had been to Indonesia in November 1993 to examine and discuss the measures to be taken to ensure the application of the Convention. Consequently, the Committee expressed the firm hope that this direct contacts mission would be followed by promising developments and that the Government would indicate, in its next detailed report on the application of the Convention, the specific measures effectively taken by the Government to codify and simplify labour legislation ensuring effective protection against anti-trade union discrimination acts and interference and to eliminate legislative restrictions on the right of workers to determine their working conditions through collective bargaining. The Committee hopes that the next report of the Government will indicate decisive progress in the legal and practical application of the Convention, if necessary with the assistance of the International Labour Office.