Informe en el que el Comité pide que se le mantenga informado de la evolución de la situación - Informe núm. 336, Marzo 2005

Caso núm. 2336 (Indonesia) - Fecha de presentación de la queja:: 11-MAR-04 - Cerrado

Allegations: The complainant organization alleges several freedom of association violations at the Jaya Bersama Company such as its refusal to recognize the union, the anti-union dismissals of trade union members and officials, and acts of intimidation against employees. The complainant organization further denounces the lack of efficiency of the government authorities’ measures taken so far

1. 498. The complaint is contained in a communication from the Confederation of Indonesian Prosperity Trade Union (K-SBSI) dated 11 March 2004. Additional information was provided in a communication from the Federation of Construction, Informal and General Workers (F-KUI) dated 4 June 2004.
2. 499. The Government sent its observations in communications dated 25 May, 31 August and 2 November 2004.
3. 500. 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 complainant organization’s allegations

1. 501. In its communication dated 11 March 2004, the complainant organization detailed allegations of anti-union practices at Jaya Bersama Company (hereinafter “the company”), a company that sells the saliva of swallow birds. The work of the company largely involves cleaning swallow nests, with the cleanest nests being the most valuable. The complainant organization alleged in this communication that the company employs 68 women and two men.
2. 502. In June 2003, 17 workers of the company came to the office of the F-KUI, an affiliate of the K-SBSI and expressed their will to join the union. On 15 July 2003, 47 workers of the company established the F-KUI plant-level union, and elected five members to the plant-level board of the F-KUI at the company: Ms. Siti Suyatmi (chairperson), Ms. Jasmini (vice-chairperson), Ms. Elly (secretary-general), Ms. Siti Purwati (vice-secretary-general) and Ms. Tatik (treasurer). The F-KUI plant-level board was registered, at the end of July 2003, as a union at the Manpower Department, North Jakarta, with registration No. 502/III/P/VII/2003.
3. 503. On 26 August 2003, the F-KUI sent the registration letter, to inform the company that the plant-level board of the F-KUI had been registered. The complainant organization alleged, however, that the company rejected the letter and did not acknowledge the union; it then started to frighten its workers to “avoid that they join the activities of the union”.
4. 504. On 26 August 2003, Mr. Aguan, the owner of the company, asked Ms. Siti Suyatmi, chairperson of the F-KUI plant-level board, for information regarding the membership of the union and suggested that if she did not want to continue to work, she could resign and receive Rp.2,000,000 (US$250). Ms. Suyatmi allegedly replied that she had already joined the union and that she did not want to change her decision.
5. 505. On 28 August 2003, at 8 a.m., the company supervisor on the fourth floor said, in front of all workers, that the K-SBSI was a terrorist organization, and hence illegal. She asked the workers not to join the union and “intimidated several workers directly”.
6. 506. On 29 August 2003, at 8 a.m., Ms. Elly (the third floor supervisor), said in front of all the workers that a lawyer had been hired to face the union and joining the K-SBSI was useless. At 12 noon, Ms. Elly announced a change in the company’s payment practice from daily payment to a contract system, linking wages to “completed nests”. Ms. Atun, the supervisor on the fourth floor, announced the same change. The change in policy was not discussed with the union.
7. 507. Later on 29 August, at 1.30 p.m., Ms. Elly and Ms. Yani called Ms. Jasmini, Ms. Tatik, Ms. Siti Sulastri, Ms. Elly and Ms. Siti Purwati to the first floor, where Yani asked them not to join the union and not to influence other workers to join the union. At 4 p.m., the company driver was sent by the supervisor to force workers on the fourth floor to sign a letter that was covered, but “presumably being a letter of agreement to the new payment practice”. The complainant organization alleged that the board of the F-KUI and some members refused to sign it, and were then physically forced to do so by Ms. Elly and Saddai. While some resisted and refused to sign, two workers, Ms. Sugiarti and Ms. Siti Aminah, were forced physically by Saddai to sign the letter. Out of 39 workers on the fourth floor, nine workers did not wish to sign (Ms. Jasmini, Ms. Tatik, Ms. Siti Sulastri, Ms. Emi, Ms. Nurhayati, Ms. Elly, Ms. Rohaeni, Ms. Ningsih and Ms. Karni). At 4.30 p.m. on the same day, Ms. Elly forced 29 workers on the third floor, including Ms. Siti Purwati and Ms. Siti Suyatmi, to sign the letter.
8. 508. At 8 a.m. on 30 August 2003, the F-KUI board protested to the supervisor because some members of the union had been discriminated against in the production process through being allotted the worst quality nests, so that they would get fewer results and consequently lower incomes.
9. 509. Between 2 p.m. and 3 p.m. on 30 August, Ms. Elly gave the workers one by one their salary. At this time, she told 11 members of the F-KUI, including all five members of the plant-level board, that the company would dismiss them, and gave them each a receipt setting out the amount of severance pay. The 11 workers concerned rejected the dismissal and severance pay, given the anti-union character of the acts. The 11 workers thus dismissed were Ms. Siti Suyatmi (chairperson), Ms. Ellyana (secretary-general), Ms. Jasmini (vice-chairperson), Ms. Karni (member), Ms. Tatik (treasurer), Ms. Rohaeni (member), Ms. Siti Sulastri (member), Ms. Suryaningsih (member), Ms. Siti Purwati (vice secretary general), Ms. Emi Susilawati (member), and Ms. Nurhayati (member). All 11 workers were young women aged between 14 and 23 years and had been employed for the following lengths of time: Ms. Siti Suyatmi and Ms. Ellyana – five years; Ms. Jasmini and Ms. Karni – three years; Ms. Tatik – two years; Ms. Rohaeni, Ms. Siti Sulastri and Ms. Suryaningsih – one year; and Ms. Siti Purwati, Ms. Emi Susilawati and Ms. Nurhayati – for between three months and one year.
10. 510. The complainant organization stated that the company denied the 11 workers entry to the building when they attempted to attend work the next day. When the central board of the F-KUI came to the company at 2 p.m. that day, the management “rejected” the union and refused them leave to enter the company. After two-and-a-half hours, the employer’s lawyer talked with the union, but the company declined any form of negotiation.
11. 511. On 5 September 2003, the 11 dismissed workers gave authority for legal action to be initiated, and the F-KUI attempted to commence bipartite negotiations. While the owner of the company refused to meet with the F-KUI, the union met once with Mr. Kris Kaban, allegedly the company’s lawyer. (The complainant organization suggested that according to “other internal sources”, however, Mr. Kaban was “just an employee of that company”.)
12. 512. As there was no response from the company, the F-KUI reported the case to the North Jakarta Manpower Department on 8 September 2003. The Manpower Department invited the owner of the company and the union to a tripartite meeting about the case on 23 September 2003, which the owner did not attend. The Manpower Department sent a letter proposing a second meeting on 2 October 2003, but again the owner of the company did not attend. When the Manpower Department attempted to deliver a letter directly to the company, the supervisor refused to receive the letter and would not give the officer access to the building. The third tripartite meeting organized for 9 October 2004 was also not attended by the company.
13. 513. The complainant organization explained that following their dismissal, the 11 workers suffered financially and Ms. Jasmini, one of the 11 workers, has since died. The remainder of the employees at the company have become afraid to be actively involved in the union activities and do not want to continue their demands to the company for better work conditions and wages. Nevertheless, it seems that they have continued to be members of the union.
14. 514. The complainant organization has requested the Committee to guarantee the reinstatement of the trade unionists and officials dismissed at the company, ensure the recognition of the union, make possible dialogue between the organized workers and the company, and end the anti-union acts in the company.
15. 515. In its second communication, dated 4 June 2004, the complainant disputed the information provided by the Government in its communication of 25 May. In particular, the complainant stated that the Indonesian Government’s investigation was flawed because it investigated the company after the events, and that neither collective bargaining nor the dismissal of the trade union board were addressed.

B. The Government’s observations

1. 516. In its communication dated 25 May 2004, the Government indicated that on 12 May 2004, three labour inspectors went to the company on a fact-finding visit. As the owner of the company was not available, the inspectors questioned staff and employees. The inspection report noted that the company employed 80 workers, of which 17 were daily workers paid a fixed daily rate, 61 were paid according to the number of nests processed, and two administrative and general staff were paid monthly. The report noted that there was no trade union within the company.
2. 517. Further, on 12 May 2004, the Ministry of Manpower and Transmigration (MOMT) arranged a tripartite meeting between the owner of the company, the union and the head of the Manpower Office, but the owner of the company did not attend. The Government also indicated that the Director of Norms Supervision, Directorate General of Labour Inspection Development, following up the labour inspection, invited the employer to a meeting to obtain further information but due to a business trip he was unable to attend and was represented by “one of his friends”, Mr. Kris, who is not a lawyer.
3. 518. In its communication dated 31 August 2004, the Government provided further information, and confirmed the existence of the plant-level union at the company, clarifying that it had previously stated that there was no trade union set up in the company because the workers could not provide receipt of its registration when the labour inspectors visited the company.
4. 519. Further, the Government indicated that as the Manpower and Transmigration Municipal Office had arranged three meetings with the employer and workers, which the employer did not attend, the Manpower and Transmigration Municipal Office mediator had accepted the workers’ evidence in the absence of any evidence from the company, and concluded that “the company cannot or does not agree with the establishment of the trade union …, so that the company terminated eleven (11) workers, including five (5) out of them who are administrators of the said trade union; and termination … is unreasonable, so it cannot considerably be applied. Consequently, they have to be re-employed”. On 29 January 2004, the mediator sent the issue to the “P4P” (the Central Committee for Labour Dispute Settlement) to get a binding legal decision. The Government further indicated that a team of representatives of the central MOMT, the Manpower and Transmigration Provincial Office and the Manpower and Transmigration Municipal Office had been established.
5. 520. In its latest communication, dated 2 November 2004, the Government enclosed a copy of the decision of the Central Committee for Labour Dispute Settlement concerning the case and indicated that the Manpower Office of North Jakarta has been taking efforts to implement the verdict. In that decision, the Central Committee considered the evidence of both parties given at a hearing on 12 August 2004.
6. 521. The evidence of the company recorded by the Central Committee was that “the volume of job orders was uncertain and subject to season” and that the number of employees fluctuated so that when there were a lot of orders, the number of employees may increase to 80, but when there were few orders, the number of employees would reduce to “around 60”. The company stated that workers were employed under the contract system and wages were paid on the basis of work results. The company stated that it offers sums of “discretionary money whose amount varies” to workers who no longer wish to work for the company. It is further recorded as stating that it “never discouraged the existence of a trade union in the … company by making things difficult or unpleasant”. Rather, the reason for the termination of the 11 employees was because the job orders received were few, and that while “the workers linked the termination of their employment to their plan to establish a trade union … this was not true, and hence, now that this incident has taken place, the entrepreneur is not willing to consider the workers for re-employment”.
7. 522. The Central Committee recorded that the workers stated that the case was based on their desire to set up a trade union in the company and because of that, the company terminated their employment by requiring them to sign a draft letter that was covered, but later turned out to contain the change in the system of work from the daily system to the contract system. The Central Committee recorded that the workers who were no longer willing to work for the company under the contract system were subjected to termination of employment with discretionary money. The workers requested the Central Committee either to require the company to re-employ the workers in their former positions, or to pay severance pay amounting to three times the amount provided under article 156(3).
8. 523. The Central Committee noted that the company did not deny the accounts given by the workers that the company had required them to sign a letter, the contents of which were covered, that turned out to concern a change from the daily system of employment to the contract system. It further noted that the company had admitted to having terminated the workers’ employment on the grounds that orders were so few that there was not enough work available to keep the workforce at work, implying that the workers had not committed any wrongdoing to justify the termination of employment. The Central Committee noted the company’s reiterated stance that it was unwilling to re-employ the workers and that the workers acknowledged that the nature of the job is such that the availability of work may fluctuate.
9. 524. The Central Committee held that the company was not entitled to grant compensation pay in its discretion but, pursuant to article 164(3) of Act No. 13 of 2003, in a termination such as this, performed for reasons associated with a reduction in the workforce or for efficiency reasons, the workers were entitled to severance pay of twice the amount provided for under article 156(2). The Central Committee made the appropriate calculations and ordered payments accordingly.

C. The Committee’s conclusions

1. 525. The Committee notes that this case concerns allegations of anti-union dismissals by the company of 11 members, including all the officials, of the plant-level F-KUI, as well as a lack of recognition of the union by the company. The Committee notes that the events with which this case is concerned occurred shortly after the establishment and registration of the plant-level F-KUI trade union, in which 47 of the employees of the company joined. The Committee further notes that the Central Committee for Labour Dispute Settlement has recently issued a decision in relation to this matter.
2. 526. Concerning the allegations that the union was not recognized by the company, the Committee notes the complainant organization’s allegations that statements negative to the union were made on the day that the registration document was forwarded to the company, and that it alleges that in the following four days until the board and members of the union were dismissed, other negative statements were made. It further notes the complainant organization’s statements that the union was not consulted upon the change in payment practices at the company and that, following the dismissals, the company would not meet with the representatives of the central F-KUI.
3. 527. The Committee also notes the Government’s information that the Ministry of Manpower and Transmigration (MOMT) labour inspectors had initially concluded that no union existed at the company because when the inspection was carried out, the remaining employees were unable to provide any information about the union and, further, that the MOMT labour mediator had concluded that the company did not “agree with the establishment of the trade union”. The Committee also notes the company’s evidence set out in the decision of the Central Committee that it “has never discouraged the existence of a trade union in the … company by making things difficult or unpleasant”. The Committee is obliged to observe, however, that there are no specific refutations in relation to each of the complainant organization’s very specific allegations.
4. 528. Recalling that measures should be taken to encourage and promote the full development and utilization of machinery for voluntary negotiation between employers or employers’ organizations and workers’ organizations, with a view to the regulation of terms and conditions of employment by means of collective agreements [see Digest of decisions and principles of the Freedom of Association Committee, 4th (Revised) edition, 1996, para. 781], the Committee requests the Government to take the necessary steps to ensure that the company does not interfere in the exercise of the workers’ right to organize and bargain collectively and, in particular, that the company recognizes the trade union so as to enable it to participate with the employer in good faith collective bargaining in relation to the terms and conditions of employment of the workers. The Committee requests to be kept informed in this regard, including details of any negotiations undertaken in the company.
5. 529. Concerning the allegations that the dismissals of the 11 workers were motivated by anti-union discrimination, the Committee recalls that it was alleged that only those who were members of the union were dismissed, including all five members of the board. The Committee notes the company’s contention, set out in the Central Committee’s decision, that the dismissals were due to a usual seasonal fluctuation in work orders.
6. 530. The Committee notes a number of factors in this regard. First, the Committee notes the information that the nature of the company’s work results in a seasonal fluctuation of work orders. For this reason, the company states, the number of employees varies between 80, at its highest, and around 60, at its lowest. The Committee notes that the complainant organization seems to indicate that in September 2003 the company employed 70 workers and that in May 2004, at the time of their visit, the MOMT labour inspectors recorded that the company employed 80 workers. This suggests that the workers dismissed were replaced by new workers and that the company did not wish to re-engage the 11 workers who had been dismissed.
7. 531. Second, the Committee notes that not only is there no evidence that a notice period was given to the workers, such as might be considered normal in a situation where a reduction in work requires redundancies, but that the dismissals allegedly occurred in the context of a series of anti-union statements made by the workers’ immediate supervisors and which are not refuted in any detail.
8. 532. Third, the Committee notes that the length of time that the workers who were dismissed had been employed varied greatly so that while six workers had been employed for one year or less, three workers had been employed for two or three years and two workers (the union chairperson and secretary-general) had been employed by the company for five years. The Committee observes that this suggests that, despite the seasonal variations in work described by the company as the reason for the 11 dismissals in this case, some workers had experienced great security of employment with the company before this incident.
9. 533. Finally, in relation to the decision of the Central Committee, the Committee notes that this decision approached the case in relation to the general law relating to dismissals, rather than primarily as a matter concerning anti-union discrimination. The Committee notes that the Central Committee found that the dismissals were not due to any fault of the workers, but were caused by the fluctuations in work, and in this respect increased the severance pay of each of the dismissed workers. The Central Committee considered that the workers only asked for reinstatement in the alternative and therefore severance pay in accordance with the law ought to be ordered.
10. 534. The Committee considers that the combination of these factors suggests that the issue of trade union discrimination was not fully reviewed by the Central Committee for Labour Dispute Settlement in its recent decision in relation to this case and, moreover, observes that no procedure against the company has been commenced in relation to articles 28 and 43 of Act No. 21/2000 concerning trade union/labour union, despite the clear conclusion of the Manpower and Transmigration Municipal Office mediator that the company did not agree with the establishment of the trade union and as a result terminated the 11 workers’ employment.
11. 535. The Committee once again recalls Case No. 2236 [see 331st Report, paras. 473-515 and 335th Report, paras. 909-971], in which it considered that the prohibition against anti union discrimination in Act No. 21/2000 is insufficient and noted that while the Act contains a general prohibition in article 28 accompanied by dissuasive sanctions in article 43, it does not provide any procedure by which workers can seek redress [see 335th Report, op. cit., para. 968]. In this regard, the Committee recalls that the dismissal of workers on grounds of membership of an organization or trade union activities violates the principles of freedom of association and that the necessary measures should be taken so that trade unionists who have been dismissed for activities related to the establishment of a union are reinstated in their functions, if they so wish [see Digest, op. cit., paras. 702 703]. The Committee further recalls that the existence of legislative provisions prohibiting acts of anti-union discrimination is insufficient if they are not accompanied by efficient procedures to ensure their implementation in practice [see Digest, op. cit., para. 742] and that it is necessary to ensure sufficient dissuasive sanctions exist in relation to anti-union discrimination. Finally, the Committee recalls that it would not appear that sufficient protection against acts of anti-union discrimination, as set out in Convention No. 98, is granted by legislation in cases where employers can in practice, on condition that they pay the compensation prescribed by law for cases of unjustified dismissal, dismiss any worker, if the true reason is the worker’s trade union membership or activities [see Digest, op. cit., para. 707].
12. 536. Taking into account the above considerations, the Committee is obliged to reiterate that workers in Indonesia are insufficiently protected against acts of anti-union discrimination and to request the Government to take the necessary steps to amend the legislation and to ensure that allegations of anti-union discrimination are examined in the framework of national procedures which are prompt, impartial and considered as such by the parties concerned [see Digest, op. cit., para. 738], as required by Convention No. 98. The Committee requests the Government to keep it informed in this regard, including by forwarding copies of any decisions taken in this matter in relation to the allegations of anti-union discrimination against the 11 workers dismissed by the company.
13. 537. Further, the Committee notes that the Central Committee’s decision recorded the company’s view that “the workers linked the termination of their employment to their plan to establish a trade union and this was not true, and hence, now that this incident has taken place, the entrepreneur is not willing to consider the workers for re-employment”. In this regard, the Committee stresses that workers should not be disadvantaged on the basis of bringing a complaint of anti-union discrimination in good faith and, accordingly, such a complaint cannot validly justify the refusal of future employment to the workers concerned. The Committee expects that if the allegations of anti-union discrimination are found to be justified within the framework of national procedures, the 11 workers will be reinstated in their functions without loss of pay. If the court were to decide that, although the allegations of anti-union discrimination were justified, reinstatement was not possible, the Committee expects the court to order appropriate redress, taking into account both the damage incurred by the 11 workers and the need to prevent the repetition of such situations in the future, through the imposition of adequate compensation. The Committee requests to be kept informed in this respect.
14. 538. Finally, the Committee once again notes the indication given by Case No. 2236 that the dismissal of trade union officials in Indonesia requires the express authorization of the labour authorities, pursuant to Act No. 22/1957 concerning labour disputes settlement and Act No. 12/1964 concerning termination of employment at private companies, and notes that in the instant case no such authorization was either sought or obtained. In this regard, the Committee observes that these two Acts were “declared as no more applicable” by article 125 of Act No. 2/2004 concerning industrial relations dispute settlement which was promulgated on 14 January 2004. Recalling that the principle that workers should enjoy adequate protection against all acts of anti-union discrimination in respect of their employment is particularly desirable in the case of trade union officials because, in order to be able to perform their trade union duties in full independence, they should have a guarantee that they will not be prejudiced on account of the mandate which they hold from their trade unions [see Digest, op. cit., para. 724], the Committee accordingly requests the Government to provide clarification of the procedure relating to the dismissal of trade union officials in Indonesia.

The Committee's recommendations

• D. The Committee’s recommendations
  539. 539 In the light of its foregoing conclusions, the Committee invites the Governing Body to approve the following recommendations:
       • (a) The Committee requests the Government to take the necessary steps to ensure that the company recognizes the F-KUI plant-level trade union and engages in collective bargaining concerning the terms and conditions of employment of the workers in good faith, and to keep it informed in this regard, including by providing details of any negotiations undertaken in the company.
       • (b) The Committee requests the Government to amend the legislation and to take the necessary steps to ensure that allegations of anti-union discrimination are examined in the framework of national procedures which are prompt, impartial and considered as such by the parties concerned, and to keep it informed in this regard, including by forwarding copies of any decisions taken in relation to this particular matter.
       • (c) Noting the repeal of Act No. 22/1957 and Act No. 12/1964, by Act No. 2/2004, the Committee requests the Government to provide clarification of the procedure relating to the dismissal of trade union officials in Indonesia.
       • (d) The Committee expects that if the allegations of anti-union discrimination are found to be justified within the framework of national procedures, the 11 workers will be reinstated in their functions without loss of pay. If the court were to decide that, although the allegations of anti-union discrimination were justified, reinstatement was not possible, the Committee expects the Court to order appropriate redress, taking into account both the damage incurred by the 11 workers and the need to prevent the repetition of such situations in the future, through the imposition of adequate compensation. The Committee requests to be kept informed in this respect.