Rapport où le comité demande à être informé de l’évolution de la situation - Rapport No. 358, Novembre 2010

Cas no 2737 (Indonésie) - Date de la plainte: 12-OCT. -09 - Clos

Allegations: The complainant organization alleges acts of anti-union dismissal and the refusal to comply with the Bandung Manpower Office’s reinstatement order by the management of the Hotel Grand Aquila

1. 613. The complaint is contained in communications dated 12 October 2009 and 28 May 2010 from the International Union of Food, Agricultural, Hotel, Restaurant, Catering, Tobacco and Allied Workers’ Associations (IUF).
2. 614. The Government sent its observations in a communication dated 26 April 2010.
3. 615. 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’s allegations

1. 616. In a communication dated 12 October 2009, the IUF, acting on behalf of an affiliated organization, namely the Federation of Hotel, Restaurant, Plaza, Apartment, Catering and Tourism Workers’ Free Union (FSPM), alleged violations by the Government of Indonesia of the fundamental freedom of association rights enshrined in Convention No. 87.
2. 617. The complainant stated that these violations arose in the context of a labour dispute between the management of the Hotel Grand Aquila Bandung (hereafter the hotel) and the Independent Trade Union (SPM) Hotel Grand Aquila. This dispute began after the employees of the Hotel Grand Aquila notified the management, on 13 October 2008, of the establishment of a trade union. As a result, 137 employees of the hotel, all members of the trade union, were intimidated and threatened by the management before being removed from their employment in December 2008. They since remain without employment.
3. 618. The complainant indicated that until 2004, there was no formally registered trade union at the hotel. A first trade union was formed by the employees in 2004 and registered with the local Manpower Office. In May 2008, a dispute arose between workers and the management in relation to the service charge distribution. In the workers’ opinion, the policy concerning service charge distribution was decided by the management without consultation or agreement with the workers’ representative, which was in breach of the Ministry of Manpower regulations relating to service charge distribution, as well as government regulations on salary and payment protection.
4. 619. In August 2008, the workers held a congress and decided to dissolve the registered trade union and establish a new independent trade union at the hotel. The new trade union was formally registered on 3 September 2008. On 19 September 2008, the chairperson of the trade union was summoned to the general manager’s office of the hotel and questioned about the establishment of the union. The chairperson of the union provided a written notification to the hotel management of the new union on 13 October 2008.
5. 620. The complainant further alleged that on 14 October 2008, the chairperson of the SPM and two elected union officers were removed from the hotel by security officers by order of the management. Furthermore, seven union officers were questioned by management and threatened with dismissal if they did not leave the union. On refusing, they were also removed from their employment. Between 16 and 31 October 2008, all members of the SPM employed at the hotel were questioned on a one-to-one basis by management and threatened with dismissal or demotion if they refused to quit the union. The intimidation went on with the announcement that union members would face a 25 per cent reduction in their service charge payment, unless they quit the union before 6 December 2008.
6. 621. The complainant indicated that the hotel management refused to reach agreement with the SPM despite a mediation attempt by the local Manpower Office in Bandung and several negotiation attempts by the union itself. On 6 December 2008, the human resources manager of the hotel issued a list of 128 union members and instructed the security personnel not to allow them to enter the hotel premises, thus their employment was terminated.
7. 622. The union filed a number of complaints to the Bandung Manpower Office as well as to the Bandung police in relation to the dispute and to the ongoing violation of freedom of association in the hotel. As a result of these complaints, and following several attempts to resolve the dispute by a mediation process, the Head of the Bandung Manpower Office issued on 15 December 2008 a letter of reprimand, asking the hotel to reinstate the nine union officers with the payment of any wage due. The same warning letter was issued again on 18 December 2008. On 23 December 2008, the Bandung Manpower Office issued a letter of reprimand asking the hotel to reinstate the 128 union members with the payment of wages due. On 5 January 2009, the Bandung Manpower Office issued a final letter of reprimand on both matters indicating that non-compliance would lead the Manpower Office to process the matter according to the laws and regulations. Still, the management of the hotel has yet to comply with the recommendations of the Bandung Manpower Office.
8. 623. The complainant requested that the Government of Indonesia take the necessary measures to enforce the recommendations of the Bandung Manpower Office and ensure that all dismissed union members are reinstated in their employment in the Hotel Grand Aquila with full back pay, benefits and seniority. The complainant also requested that dissuasive sanctions against anti-union discrimination be taken so that freedom of association rights and Convention No. 87 are applied.
9. 624. In a communication dated 28 May 2010, the IUF sent copy of a recommendation dated 7  April 2010 from the National Commission on Human Rights concerning the labour dispute between the SPM Hotel Grand Aquila Bandung and the Hotel Grand Aquila management in which the National Commission indicated that following the request for mediation from the SPM, it sent letters to the hotel management but its mediation efforts were refused by the latter. As a result, the National Commission on Human Rights recommended that the President of the Republic of Indonesia take action by instructing relevant government official in the labour affairs department to immediately resolve the problems through the mechanism of existing law, whether civil or criminal, and by ordering government officials to monitor directly in order to ensure that workers’ rights to freedom of association at the Hotel Grand Aquila in Bandung are ensured and protected.

B. The Government’s reply

1. 625. In its communication of 26 April 2010, the Government indicated that the case involves the Hotel Grand Aquila, a five-star hotel located in Bandung, West Java Province, which employs 320 workers, of whom 137 are members of the SPM Grand Aquila Hotel (128 members and nine elected officers).
2. 626. The Government indicated that the SPM was registered to the local Manpower Office in Bandung on 3 September 2008. It also indicated that on 19 November 2008, a Family Association of Grand Aquila Union (IKGA) was registered.
3. 627. The Government reported that on 14–15 October 2008, following the notification of the formation of the SPM to the hotel management, officers of the SPM were called in to meet with the management but were driven out by security officers and not permitted to enter the premises of the hotel. On 20 October 2008, the Manpower Office in Bandung received reports on the infringement of freedom of association rights by the nine union officers. The Manpower Office organized an informal meeting with the two parties with a view to resolving the dispute and reaching an agreement. However, no agreement was reached. The Manpower Office also sent to the hotel management a letter clarifying Act No. 21 on Labour Union (2000).
4. 628. On 1 December 2008, the SPM notified the management of the hotel that the workers and union members would hold a strike unless the union members were reinstated and all forms of intimidation stopped. The strike took place on 6 December 2008 in the hotel premises and lobby by employees of the hotel. The day after, the employment of all 128  members of the SPM was terminated and they were no longer allowed on the premises of the hotel. They were given a payment of 15 days of work.
5. 629. According to the Government, mediation between the two parties was organized by the Bandung Manpower Office on 10 and 16 December 2008, but without any result. The Government informed that meanwhile, by warning letters dated 11 November 2008, 15  and 23 December 2008, 5 January 2009, the Bandung Manpower office requested the hotel management to reinstate the union officers and members with full back pay and reminded of the possible sanctions in case of non-compliance. In a letter dated 5 January 2009, the Manpower Office indicated that unless it complied with the recommendations within five days, the hotel would be brought to court. However, no response was received from the hotel management.
6. 630. The SPM reported both to the Manpower Office and to the local city police on the criminal offences of non-payment of wages (Act No. 13 of 2003), and on the violation of freedom of association rights (Act No. 21 of 2000).
7. 631. The Government provided a summary of all steps taken by the local authorities concerning the dispute:
   • – the Manpower Office in Bandung issued an incident report on January 2009 on the Grand Aquila Hotel for the non-payment of wages to nine trade unions members starting October 2008 and to 121 union members starting January 2009.
   • – The Manpower Office had attempted to resolve the dispute through mediation (December 2009).
   • – The mediator of the Manpower Office of Bandung issued recommendations for the reinstatement of the nine trade union officers (18 December 2008, No. 567/8290- Disnaker) and of 119 trade union members (12 October 2009 No. 567/5140-Disnaker) with payment of wages due.
   • – The local police of Bandung had submitted the case to the District Attorney Office on several occasions, including the docket case of alleged violation of freedom of association (3 August 2009, 28 December 2009 and 2 February 2010). Further action is expected from the District Attorney.
   • – The Labour Inspector had provided guidance to the hotel management on the respect of provisions of Act No. 21 on Labour Union (2000).
8. 632. The Government reminded that it is committed to protect freedom of association rights, including the establishment of trade unions and their activities in companies, in accordance with Act No. 21 on Labour Union (2000). In case of violation of such rights, the courts can decide on one to five years of imprisonment and a fine of at least 100,000,000 rupees.

C. The Committee’s conclusions

1. 633. The Committee notes that this case concerns allegations of anti-union dismissals and the refusal from the management of the Hotel Grand Aquila to comply with the Bandung Manpower Office’s reinstatement order.
2. 634. The Committee notes that the independent trade union SPM Grand Aquila Hotel was established following a congress of employees of the Hotel Grand Aquila in August 2008 whereby they also decided to dissolve the registered trade union. The SPM was formally registered on 3 September 2008 at the Bandung Manpower Office under No. 250/SPM.HGAB-CTT.33-Disnaker/2008.
3. 635. The Committee notes from the information provided both by the complainant and by the Government that a dispute arose upon the notification of the establishment of the trade union to the hotel management. It observes that, according to the complainant, the day after the notification the chairperson of the SPM was driven out of the hotel by security officers by order of the management. Furthermore, the nine elected union officers were questioned by management, threatened with dismissal if they did not leave the union, and were dismissed from their employment upon refusal. The Committee notes the allegation that employees of the hotel who were union members were also subject to intimidation and threats of dismissal or demotion unless they quit the trade union. The intimidation allegedly continued with the announcement that union members would face a 25 per cent reduction in their service charge payment. The Committee recalls that one of the fundamental principles of freedom of association is that workers should enjoy adequate protection against all acts of anti-union discrimination in respect of their employment, such as dismissal, demotion, transfer or other prejudicial measures. This protection 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. The Committee has considered that the guarantee of such protection in the case of trade union officials is also necessary in order to ensure that effect is given to the fundamental principle that workers’ organizations shall have the right to elect their representatives in full freedom. Cases concerning anti-union discrimination contrary to Convention No. 98 should be examined rapidly, so that the necessary remedies can be really effective [see Digest of decisions and principles of the Freedom of Association Committee, fifth (Revised) edition, 2006, para. 799].
4. 636. The Committee notes that the hotel management refused to reach agreement with the SPM despite a mediation attempt by the Bandung Manpower Office and several negotiation attempts by the union itself to resolve the dispute on the dismissal of the union officers. It further notes that on 1 December 2008, the SPM notified the management of the hotel that the workers and union members would hold a strike unless the union members were reinstated and all forms of intimidation stopped. The strike took place on 6 December 2008 on the hotel premises and lobby by employees of the hotel. The day after, the employment of all 128 members of the SPM was terminated and they were no longer allowed on the premises of the hotel. They were only given a payment of 15 days of work. In this regard, the Committee wishes to emphasize that it has always recognized the right to strike by workers and their organizations as a legitimate means of defending their economic and social interests. As a result, the dismissal of workers because of a strike constitutes serious discrimination in employment on grounds of legitimate trade union activities and is contrary to Convention No. 98 [see Digest, op. cit., paras 521 and 661]. The Committee notes that the SPM filed a number of complaints to the Bandung Manpower Office as well as to the Bandung police in relation to the dispute and to the ongoing violation of freedom of association in the hotel. According to the complainant, following several attempts to resolve the dispute by a mediation process, the Manpower Office issued on 15 and 18  December 2008 a letter of reprimand, asking the hotel to reinstate the nine union officers with the payment of any wages due. On 23 December 2008, the Bandung Manpower Office issued a letter of reprimand asking the hotel to reinstate the 128 union members with the payment of wages due. On 5 January 2009, the Bandung Manpower Office issued a final letter of reprimand on both matters indicating that non-compliance would lead the Manpower Office to process the matter according to the laws and regulations. The Committee notes from the Government’s reply that by warning letters dated 11 November 2008, 15 and 23 December 2008, 5 January 2009, the Bandung Manpower Office requested the hotel management to reinstate the union officers and members with full back pay and reminded of the possible sanctions in case of noncompliance. In a letter dated 5 January 2009, the Manpower Office indicated that unless it complied with the recommendations within five days, the hotel would be brought to court. However, no response was received from the hotel management. Furthermore, the Government indicates that the mediator of the Manpower Office of Bandung issued recommendations for the reinstatement of the nine trade union officers (18 December 2008, No. 567/8290-Disnaker) and of 119 trade union members (12 October 2009 No.  567/5140-Disnaker) with payment of wages due.
5. 637. The Committee also notes the recommendation dated 7 April 2010 from the National Commission on Human Rights concerning the labour dispute between the SPM and the hotel management in which the National Commission indicated that the hotel management refused all mediation process and it recommended to the President of the Republic of Indonesia to instruct the relevant government official in the labour affairs department to immediately resolve the problems through the mechanism of existing law, whether civil or criminal, and to order a direct monitoring by government officials to ensure that workers’ rights to freedom of association at the Hotel Grand Aquila in Bandung are ensured and protected.
6. 638. The Committee acknowledges the efforts from the local authorities, and from the National Commission on Human Rights to resolve the dispute through mediation. It also takes due note of the numerous recommendations and orders directed to the hotel management for the reinstatement of the officers and the members of the SPM. However, it observes that two years have passed since the first recommendation directed to the hotel management on the dispute and that letters of reprimand were also sent reminding of sanctions in case of non-compliance, without result to date. Noting the stated commitment of the Government to protect freedom of association rights, including the establishment of trade unions and their activities in companies, in accordance with Act No. 21 on Labour Union (2000), the Committee recalls that the ultimate responsibility for ensuring respect for the principles of freedom of association lies with the Government.
7. 639. The Committee recalls more generally that on a number of occasions it examined complaints of anti-union discrimination in Indonesia and has considered that the prohibition against anti-union discrimination in Act No. 21/2000 is insufficient. 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, Case No. 2236, para. 968]. 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. 791]. The Committee cannot but express its deep concern that the time that has elapsed since the initial dispute and the dismissal of the trade union members and leaders (October–December 2008) is likely to have effectively prevented the trade union from carrying out its activities to defend the rights of its members. In these circumstances, the Committee urges the Government to take without delay all necessary measures to enforce the recommendations and orders issued by the Bandung Manpower Office concerning the reinstatement of officers and members of the SPM at the Hotel Grand Aquila in Bandung.
8. 640. In addition, the Committee notes with deep regret that the Government does not reply to the serious allegations made with regard to the Government’s failure to ensure an effective mechanism of protection against acts of anti-union discrimination. The Committee also notes with concern the failure of the mediation processes to resolve the issues and emphasizes the importance which it places on the need to initiate investigations aimed at verifying and remedying the alleged acts of anti-union discrimination [see also Cases Nos 2336 (336th Report, paras 498–539, at 534); 2451 (343rd Report, paras 906–928, at 926); 2472 (348th Report paras 907–942) and 2494 (348th Report, paras 943–966)]. While acknowledging once again the importance of mediation in finding commonly acceptable solutions to labour disputes, the Committee also recalls that no one should be subjected to discrimination or prejudice with regard to employment because of legitimate trade union activities or membership, and the persons responsible for such acts should be punished [see Digest, op. cit., para. 772]. Where a government has undertaken to ensure that the right to associate shall be guaranteed by appropriate measures, that guarantee, in order to be effective, should, when necessary, be accompanied by measures which include the protection of workers against anti-union discrimination in their employment [see Digest, op. cit., para. 814]. The basic regulations that exist in national legislation prohibiting acts of anti-union discrimination are inadequate when they are not accompanied by procedures to ensure that effective protection against such acts is guaranteed [see Digest, op. cit., para. 818]. Consequently, the Committee once again 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 of all steps taken in this regard.
9. 641. The Committee also requests the Government to keep it informed of any measures taken to follow up the recommendations of the National Commission for Human Rights in relation to the present case. Finally the Committee requests the Government to indicate any court action taken by the District Attorney of Bandung or any sanction taken in relation to the allegation of infringement of freedom of association rights by the hotel management.
10. 642. The Committee draws the legislative aspects of this case to the attention of the Committee of Experts on the Application of Conventions and Recommendations.

The Committee's recommendations

1. 643. In the light of its foregoing conclusions, the Committee invites the Governing Body to approve the following recommendations:
   • (a) The Committee urges the Government to take without delay all necessary measures, including sanctions where appropriate, to enforce the recommendations and orders issued by the Bandung Manpower Office concerning the reinstatement of officers and members of the SPM at the Hotel Grand Aquila in Bandung.
   • (b) 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 of all steps taken in this regard.
   • (c) The Committee also requests the Government to keep it informed of any measures taken to follow up the recommendations of the National Commission for Human Rights in relation to the present case.
   • (d) The Committee requests the Government to indicate any court action taken by the District Attorney of Bandung or any sanction taken in relation to the allegation of infringement of freedom of association rights by the hotel management.
   • (e) The Committee draws the legislative aspects of this case to the attention of the Committee of Experts on the Application of Conventions and Recommendations.