Rapport où le comité demande à être informé de l’évolution de la situation - Rapport No. 359, Mars 2011

Cas no 2754 (Indonésie) - Date de la plainte: 13-DÉC. -09 - Clos

Allegations: The complainant organization alleges anti-union dismissals from the PT. Dok Dan Perkapalan Surabaya resulting in difficulties of the SEKAR–DPS trade union to operate

1. 647. The complaint is contained in a communication dated 13 December 2009 from the Federation of Indonesian Metal Workers’ Union (FIMWU).
2. 648. The Government sent its observations in a communication dated 6 September 2010.
3. 649. Indonesia has ratified the Freedom of Association and Protection of 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. 650. In a communication dated 13 December 2009, the FIMWU, acting on behalf of an affiliated organization, namely the SEKAR–DPS trade union, alleges that the Government of Indonesia fails to protect trade unions from anti union practices by the management of a state-owned enterprise, the PT. Dok Dan Perkapalan Surabaya (PT. DPS).
2. 651. The complainant indicates that PT. DPS had been trying to interfere in the election of the President of the SEKAR–DPS trade union. However, having failed to do so, the enterprise dismissed the newly elected President of the union, Mr Muchlish, and harassed 60 members of the union executive. Such anti-union practices from the management led to a situation where the union had serious difficulty to operate normally. The complainant adds that all attempts of SEKAR–DPS to discuss with the management had been in vain. Furthermore, the enterprise’s management refused mediation proposed by the local police of the Ministry of Manpower. The complainant provides the following chronological details of the case.
3. 652. On 13 August 2009, the trade union president election committee of the SEKAR–DPS sent to the management of PT. DPS the election schedule informing of the date of the election (14 October 2009). On 9 October 2009, Mr Muchlish, the President of SEKAR–DPS and one of the candidates for the coming election, was notified without any prior consultation or notice of his transfer to the Jakarta office effective from the date of notification. The union sent two objection letters to the management requesting a proper dialogue. While Mr Muchlish won the trade union election on 14 October with 90 per cent of all cast votes for a second term, he received from the management a third grade warning letter for his failure to go to the Jakarta office.
4. 653. The complainant indicates that, following his letter to the management on the schedule of the trade union, on 16 October 2009 Mr Muchlish was barred from entering the trade union office by security guards instructed by the management. On the same day, the trade union sent to the management a dialogue request letter together with a strike notice. The management decided to dismiss Mr Muchlish and to notify Mr Arie Wibowo, the general secretary of the union, of his suspension effective 19 October 2009. Furthermore, three days later three members of the trade union were restricted from entering the company property, which resulted in putting the normal operation of the SEKAR–DPS to a halt.
5. 654. The complainant indicates that the strike which took place from 28 to 30 October 2009 as scheduled complied to all legal requirements and was held in a very orderly manner. However the management of PT. DPS refused to negotiate. The trade union decided on 2 November 2009 to organize demonstrations in several locations including PT. DPS, the office of the East Java Governor and the House of People’s Representatives. The complainant denounced the fact that from 3 November 2009 the management of PT. DPS suspended 17 members of the SEKAR–DPS and gave warning for suspension to the entire trade union committee (60 members). A letter dated 30 November 2009 to the management requesting immediate dialogue relating to the sanctions remained unanswered.
6. 655. The FIMWU requests the Committee to instruct the Government to ensure the free exercise of trade union activities without management interference.

B. The Government’s reply

1. 656. In its communication of 6 September 2010, the Government indicates that it had organized several meetings to solicit information from the management of the PT. DPS. The Government provided the following chronological details of the case.
2. 657. On 13 August 2009, the chairperson of the election commission of the union notified the management of the schedule of the election for chairpersonship of SEKAR–DPS and that the candidate was the incumbent chairperson itself, Mr Muchlish. On 3 October 2009, Mr Muchlish was called by the President Director to get a briefing on a job transfer plan made by the company wherein 18 people, including himself, would be transferred to new posts. The letter of decision of the Board of Directors on the job transfer and promotion of the 18 people was issued on 7 October to be effective as of 9 October 2009. On 12 October, Mr Muchlish was called by the Senior Human Resources Manager to receive the letter of decision on the job transfer and to get instructions and explanation on the transfer, but he asked a friend from the to take it instead. On the same day, SEKAR–DPS sent a letter of objection to the job transfer.
3. 658. On 14 October 2009, Mr Muchlish won the election as chairperson of SEKAR–DPS. On the same day, the Board of Directors of the company notified SEKAR–DPS to the effect that the job transfer of Mr Muchlish was final and that he was asked to carry out the new assignment not later than 16 October 2009. On 15 October 2009, Mr Muchlish received a third warning letter for having ignored the company’s instruction which, according to the company, contravened the collective agreement. On the same day, SEKAR–DPS sent a letter to the Manpower Office of Surabaya City requesting inquiries into the job transfer of Mr Muchlish qualified as a suspected crime against the Manpower Law. On 16 October 2009, the Board of Directors of the company issued a letter of decision on the discharge of Mr Muchlish from employment for his refusal to obey the job transfer order. The letter also prohibited Mr Muchlish from entering the company. The letter sparked a series of actions from other employees causing several people to be suspended. In response, SEKAR–DPS issued a strike notice, which was to take place on 28 October 2009.
4. 659. On 22 October 2009, Mr Arie Wibowo, general secretary of SEKAR–DPS, made a report on the violation of article 28 of Act No. 21 of 2000, on Trade union/Labour union. The union went on strike as scheduled from 28 to 30 October 2009. The union demanded reconsideration of the decision to transfer Mr Muchlish, the termination of the company’s outsourcing programme, the realization of the incentive on income tax under article 21 of the Regulation of the Minister of Finance, the settlement of division of the proceeds from the company’s waste processing, and the entrusting of the company’s waste processing to the employees’ cooperative society. The management of the company made an objection to the strike by a letter dated 28 October 2009, sent to the East Java region police and to the Manpower Office of Surabaya on the grounds that the normative demand of the trade union would be granted, that the strike was detrimental to the company, that the strike was unlawful by forcing other workers to stop working, that the strike involved workers who were under suspension or whose employment had been terminated, and that the FIMWU, the complainant in the present case, had held a meeting without the permission of the company and had made provocation.
5. 660. On 3 November 2009, a supervisory officer of the Manpower Office of Surabaya City sought clarification from the chairperson and the general secretary of SEKAR–DPS. Neither were willing to give any written statement for fear of double jeopardy. They feared that the intervention of the Manpower Office would put a halt to the inquiries which were being conducted by the Surabaya municipal police in relation to alleged violation of Act No. 21 on Trade union/Labour union, as requested by the union. On 4 November, the supervisory officer of the Manpower Office of Surabaya City sought clarification from the President Director and the Senior Human Resources Manager of PT. DPS. A written interrogation report was drawn up on the statements given. After a second letter of complaint by SEKAR–DPS, the supervisory officer of Surabaya City conducted an inspection at the company on 23 November 2009. A report on the outcome of the inspection was sent to the company and the trade union on 28 November 2009. On 30 November 2009, the Surabaya municipal police heard the Senior Human Resources Manager of PT. DPS as a witness in the case of violation of article 28 of Act No. 21 on Trade union/Labour union.
6. 661. On 5 January 2010, SEKAR–DPS addressed to the Manpower Office of Surabaya City and East Java province a response to the outcome of the inspection at the company and requested a re-inspection. As a follow-up to the letter, summonses were served upon SEKAR–DPS on 2 February 2010, and upon the Director of the company on 3 February 2010. The outcome of the clarification summons was incorporated in a letter dated 12 February 2010 and sent to both parties.
7. 662. The Government indicates that from 14 January to 3 February 2010, the Director of the company issued letters of discharge from employment to eight workers for their involvement in the workers’ action of 16 October 2009 and the strike, and for not changing their attitude after their suspension. These workers are Mr Abd. Sukur, Mr Abadi Harianto, Mr Subiyanto, Mr Aris Purwanto, Mr Katjung Budi Susianto, Mr Dhoni Laksosno,
   • Mr A. Rifai and Mr Arie Wibowo, the general secretary of the union. On 29 January 2010, the trade union issued a letter objecting to the decision to dismiss the eight workers. However, the Government underlined that no mediation process had been requested to the Manpower Office of Surabaya City for the settlement of the dispute.
8. 663. On 11 February, a mediator of the Manpower Office of Surabaya City issued recommendations on the conflict between the company and the union, essentially recommending that Mr Muchlish accept the job transfer and that the decision to suspend Mr Wibowo and friends be revoked and they resume work, with payment of back wages. On 12 February 2010, a supervisor of the Manpower Office of Surabaya City reported on the outcome of the clarification summons on the case of PT. DPS, essentially to the effect that the employment relationship between the company and the workers had not yet ended so long as a decision of the industrial relations dispute settlement institution had not been made, thereby the two parties still had to comply with their obligations.
9. 664. On 27 April 2010, the SEKAR–DPS issued a request for an official memorandum on instruction of payment of wages. This was followed up by an inspection at the company conducted by a local manpower supervisor on 5 May 2010. As a result, the Manpower Office of Surabaya City issued a letter on memorandum of inspection dated 11 May 2010, addressed to the company to the effect that the wages of Mr Muchlish since November 2009 were to be paid and the matter of termination of employment of eight workers was to be immediately registered with the Manpower Office and the company was to pay their wages.
10. 665. The Government underscores the efforts made by the authorities, among them the occasions where the manpower supervisory officer sought clarification from the parties, the inspections conducted at the company, and the letters issued by the Manpower Office of Surabaya City to the company on actions to be taken following the outcome of examination of the disputes.
11. 666. The Government also highlights the examination by the Surabaya municipal police with the hearing of a witness in the case of alleged violation of article 28 of Act. No. 21 on Trade union/Labour union and a community policing acceleration activity conducted in November 2009 at the company for the development of understanding of the employees and the company in order that, in responding to any issue, there would not be any provocative act.
12. 667. The Government adds that procedures under Act No. 2 of 2004 on Industrial Dispute Settlement had been taken concerning the job transfer decision resulting in the termination of employment of Mr Muchlish and that a settlement had now been achieved through the mediation of the Manpower Office of Surabaya City. The mediator made the following recommendations:
    • – Mr Muchlish was to take the job transfer from Surabaya to Jakarta as determined by the company;
    • – the company was to revoke the suspension of Mr Arie Wibowo and friends (17 people) in order that they could resume work;
    • – the company remained obliged to pay the wages of the workers during the non-job period;
    • – the company was to comply with the income tax procedure under the regulation in force;
    • – waste processing formed the right and authority of the company to regulate on condition that 80 per cent was for the interest of the company and 20 per cent for the workers;
    • – assignment of a job to a third party did not conform to the laws and regulations; the employment status of workers had to be transformed to employment relationship with the company.
13. 668. The Government adds information provided by the PT. DPS to the effect that the job transfer of Mr Muchlish and 17 other workers formed a routine activity of the company carried out every year, and more specifically the transfer was intended to promote Mr Muchlish in his career. The company emphasized that the job transfer was conducted through a transparent mechanism which included prior consultation of the 18 workers before the notification of job transfer. However Mr Muchlish refused to take the letter of decision on the job transfer and asked a friend to take it. According to the company, Mr Muchlish received a third warning letter for being regarded as having breached the collective employment agreement; Mr Muchlish had also performed acts in breach of letter (b)–(d), paragraph 3, article 20, of the Collective Employment Agreement, so that he was given a sanction and discharged from employment. With respect to the recommendation of the mediator to the effect that Mr Muchlish was to take the job transfer assigned by the company, PT. DPS denied the recommendation for the reason that the post of Jakarta Representative Office Manager was now filled by another person. However, the company added that Mr Muchlish had indeed then agreed to accept the job transfer.
14. 669. The Government declares that the company never hindered the implementation of freedom of association; on the contrary the company provided operational support to the management of its employees’ trade union. The job transfer of Mr Muchlish and other workers had been discussed by the management since May 2009, while the election of the chairperson of SEKAR–DPS was scheduled to take place in October 2009, demonstrating that the job transfer had nothing to do with the election. The case of employment of Mr Muchlish and the denial by the management of PT. DPS of the recommendation of the Manpower Office of Surabaya City had been filed with the Industrial Relations Tribunal at the District Court of Surabaya. The tribunal issued a decision on 19 July 2010 whereby it declared that the Mr Muchlish had performed an act contrary to Act No. 13 of 2003 on manpower and had breached the Collective Employment Agreement, that the letter of decision on the job transfer dated 16 October 2009 from the Board of Directors was lawful and valid, that the employment relationship between the company and Mr Muchlish was severed as of 19 October 2009, and the tribunal ordered the company to pay the rights of Mr Muchlish on account of the termination of employment amounting to 66,672,547 rupiahs (IDR) (the Government provided copy of the judgment in original language).
15. 670. Finally, the Government indicates that the demonstration staged by SEKAR–DPS without notice and which shut down the company had caused great losses to the company, and consequently the management terminated the employment of eight workers who were proven to be the initiators of the demonstration. However, the Government asserts that a negotiation is being held in the company on the issue of their reinstatement.

C. The Committee’s conclusions

1. 671. The Committee notes that this case concerns allegations of anti-union dismissals by the PT. DPS resulting in difficulties for the company trade union, the SEKAR–DPS, to operate.
2. 672. The Committee notes the allegations from the FIMWU that the Government of Indonesia fails to protect trade unions from anti union practices by the management of its state-owned enterprise, the PT. DPS (“the company”). The Committee notes that, according to the complainant, the company had been trying to interfere in the election of the President of the SEKAR–DPS. However, having failed to do so, the enterprise had dismissed the elected President of the union, Mr Muchlish, and harassed 60 members of the trade union executive board. According to the complainant, these practices – despite attempts by the trade union to discuss with the management – had led to a situation where the union had serious difficulty operating normally.
3. 673. The Committee notes from the information provided both by the complainant and by the Government that the dispute arose after the trade union notified the management of the company of the chairpersonship election schedule (14 October 2009).The Committee notes that, according to the complainant, Mr Muchlish, the incumbent President of SEKAR–DPS – and candidate for election – was notified on 16 October 2009, without any prior consultation or notice of his transfer to the Jakarta office effective from the date of notification. The Committee also notes the company’s indication that, on the contrary, the job transfer of Mr Muchlish and 17 other workers formed a routine activity of the company carried out every year. The job transfer had been discussed by the management since May 2009 and had nothing to do with the election. The company added that the job transfer was conducted through a transparent mechanism, which included prior consultation of the 18 workers concerned before the notification of their job transfer. Moreover, the transfer was intended to promote Mr Muchlish in his career as the Jakarta Representative Office Manager. The Committee notes from the details provided by the Government that, on 3 October 2009, Mr Muchlish was called by the President Director to get a briefing on a job transfer plan made by the company wherein 18 people, including himself, would be transferred to new posts. The letter of decision of the Board of Directors on the job transfer and promotion of the 18 people was issued on 7 October to be effective as of 9 October 2009. On 12 October, Mr Muchlish was called by the senior human resources manager to receive the letter of decision on the job transfer and to get instructions on the transfer, but he asked a friend from the Human Resources Development Department to take it instead. According to the complainant, several letters from the union to discuss this question remained unanswered.
4. 674. The Committee notes that Mr Muchlish won the trade union election on 14 October with 90 per cent of all cast votes for a second term. On the same day, the trade union received a letter from the Board of Directors of the company indicating that the job transfer of Mr Muchlish was final and asking him to carry out the new assignment on 16 October. The following day, Mr Muchlish received from the management a third grade warning letter for his failure to comply with the transfer decision and for allegedly contravening the collective agreement signed between the company and the trade union. The Committee notes that, finally, on 16 October 2009, the Board of Directors issued a letter of decision on the discharge of Mr Muchlish from employment for his refusal to obey the job transfer order.
5. 675. The Committee notes that, according to the information provided by the complainant and the Government, the letter of dismissal also prohibited Mr Muchlish from entering the company. Moreover, the complainant indicated that Mr Muchlish was barred from entering the trade union office by security guards instructed by the management. In this regard, the Committee wishes to recall that the access of trade union members to their union premises should not be restricted. Furthermore, the Committee has emphasized that workers’ representatives should be granted access to all workplaces in the undertaking where such access is necessary to enable them to carry out their representative function. Moreover, the Committee recalls that trade union representatives who are not employed in the undertaking but whose trade union has members employed therein should be granted access to the undertaking. The granting of such facilities should not impair the efficient operation of the undertaking concerned [see Digest of decisions and principles of the Committee on Freedom of Association, fifth edition, 2006, paras 1104–1105]. Therefore, the Committee observes that, while the employment of Mr Muchlish had been terminated (a point it will come back to below), he remained the elected chairperson of the company trade union. The Committee is of the view that the decision of the Board of Directors to prohibit Mr Muchlish from entering the company constituted a serious interference with the effective exercise of his representative function. The Committee draws attention to the need to ensure full compliance with the abovementioned principles concerning access to the workplace.
6. 676. The Committee further notes that, following the discharge of Mr Muchlish, the general secretary of the SEKAR–DPS made a report to the police on the violation of article 28 of Act No. 21 of 2000 on Trade union/Labour union. The trade union also went on strike from 28 to 30 October 2009. The union demanded reconsideration of the decision to transfer Mr Muchlish, as well as the termination of the company’s outsourcing programme, the realization of the incentive on income tax under article 21 of the Regulation of the Minister of Finance, the settlement of the division of the proceeds from the company’s waste processing, and the entrusting of the company’s waste processing to the employees’ cooperative society. The Committee notes that the company made an objection to the strike by a letter dated 28 October 2009, sent to the East Java Region Police and to the Manpower Office of Surabaya City on the grounds that the normative demand of the trade union would be granted, that the strike was detrimental to the company, that the strike was unlawful by forcing other workers to stop working, that the strike involved workers who were under suspension or whose employment had been terminated, and that the FIMWU, the complainant in the present case, had held a meeting without the permission of the company and had made provocation.
7. 677. The Committee notes the Government’s indication that, in November 2009, a supervisory officer of the Manpower Office of Surabaya City sought clarification from the chairperson and the general secretary of SEKAR–DPS as well as from the President Director and the Senior Human Resources Manager of the company. An inspection at the company was also conducted on 23 November 2009. The Committee observes that a settlement of the matters has been achieved through the mediation of the Manpower Office of Surabaya City under Act No. 2 of 2004 on industrial dispute settlement. The Committee notes in particular that the mediator made a recommendation to the effect that Mr Muchlish was to take the job transfer from Surabaya to Jakarta as determined by the company. Although the company acknowledged that Mr Muchlish had then agreed to accept the job transfer, it denied the recommendation for the reason that the post had been filled by another person. Finally, the Committee notes that the case of employment of Mr Muchlish and the denial by the management of PT. DPS of the recommendation of the Manpower Office of Surabaya City was filed with the Industrial Relations Tribunal at the District Court of Surabaya. The tribunal issued a decision on 19 July 2010 whereby it declared that Mr Muchlish had performed an act contrary to Act No. 13 of 2003 on manpower and had breached the Collective Employment Agreement, that the letter of decision on the job transfer dated 16 October 2009 from the Board of Directors was lawful and valid, that the employment relationship between the company and Mr Muchlish was severed as of 19 October 2009. The tribunal ordered the company to pay the rights of Mr Muchlish on account of the termination of employment amounting to IDR66,672,547 (=US$7,364) consisting of severance pay, service gratuity and compensation for rights.
8. 678. The Committee notes the divergent views expressed by the complainant and the Government on the motivation and circumstances of the decision to transfer Mr Muchlish, the chairperson of SEKAR–DPS. The Committee gives due note to the recommendations of the mediator and the findings of the Industrial Relations Tribunal. The Committee also wishes to recall 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. The Committee has expressed the view that a deliberate policy of frequent transfers of persons holding trade union office may seriously harm the efficiency of trade union activities [see Digest, op. cit., paras 799 and 802]. While it expects that all measures will be taken to ensure full compliance with the abovementioned principles, the Committee requests the Government to provide information on the present employment status of Mr Muchlish, indicating whether he is still exercising his functions as chairperson of the SEKAR–DPS and, if so whether he is granted access to PT. DPS to enable him to carry out his representative function. More generally, the Committee expresses its concern at the fact that the question of the transfer of Mr Muchlish was not resolved through dialogue with the union as the complainant indicates it had requested and in light of the context of the elections to take place at the same moment. Noting the divergent views of the complainant and the enterprise set out in the Government’s reply concerning the motivation for the transfer of Mr Muchlish, the Committee requests that the Government encourage dialogue between the union and the enterprise on the employment status of Mr Muchlish including, but not limited to, the possibility of rehiring him in another post, should he so desire and should this be practicable.
9. 679. Furthermore, the Committee notes that, according to the Government, the decision of the Board of Directors to prohibit the President of the trade union from entering the union premises had sparked a series of action from other employees causing several people to be suspended. From 3 to 6 November 2009, the management of the company suspended 17 members of the trade union committee. The Government also indicated that the demonstration staged by SEKAR–DPS without notice, shutting down the company, had caused great losses to the company, and consequently the management terminated the employment of eight workers who were proven to be the initiators of the demonstration. The Government specified that from 14 January to 3 February 2010, the Director of the company issued letters of discharge to eight workers for their involvement in the workers’ action of 16 October 2009 and the strike, and for not changing their attitude after their suspension. These workers are Mr Abd. Sukur, Mr Abadi Harianto, Mr Subiyanto, Mr Aris Purwanto, Mr Katjung Budi Susianto, Mr Dhoni Laksosno, Mr A. Rifai and Mr Arie Wibowo, the general secretary of the union. The Committee notes the information from the complainant that Mr Arie Wibowo, the general secretary of the union, was notified of his suspension effective as of 19 October 2009. Three days later three members of the trade union were also restricted from entering the company property, which resulted in bringing the normal operation of the SEKAR–DPS to a halt.
10. 680. First, the Committee recalls that no one should be penalized for carrying out or attempting to carry out a legitimate strike. Moreover, 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 660–661]. The Committee observes that, in the present case, the Government indicated that, under the procedures of Act No. 2 of 2004 on industrial dispute settlement, a mediator of the Manpower Office of Surabaya City issued, among others, the recommendation that the decision of suspension of Mr Wibowo and 16 members of the union committee be revoked and they resume work and that they be paid back wages. The Committee also notes the indication that a negotiation is ongoing in the company on the reinstatement of the eight workers – of the 17 suspended workers – who were dismissed for their involvement in a demonstration which allegedly caused great losses to the company and for not having changed their attitude during their suspension period. The Committee requests the Government to keep it informed on any follow-up to the recommendation of the mediator of the Manpower Office of Surabaya City to the effect that the company revoke the suspension of Mr Arie Wibowo, general secretary of the SEKAR–DPS, and 16 other members of the union committee and pay back wages. As regards the indication from the Government that a negotiation is ongoing in the company concerning the reinstatement of the eight dismissed workers, the Committee requests the Government to make efforts to bring about a negotiated solution to this matter, particularly given the fact that, according to the Government, they were fired for having undertaken demonstrations in reaction to the firing of their chairperson and for not changing their attitude, and in a context where, according to the complainant but not refuted in the Government’s reply, attempts to discuss the matter in dispute went unanswered by the management. The Committee requests the Government to keep it informed of any progress made in this regard.
11. 681. The Committee acknowledges the efforts from the local authorities, in particular the Manpower Office of Surabaya City and the Surabaya municipal police, to resolve the dispute through inquiries and mediation. Since the case concerns alleged anti-union dismissals resulting in difficulties of a trade union to operate, the Committee requests the Government and the complainant to indicate whether the SEKAR–DPS is still organizing activities at the PT. DPS.
12. 682. The Committee is bound to recall 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 Case No. 2236, 335th Report, 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. 707]. The Committee notes 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 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. It expects that allegations of anti-union discrimination would be 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.

The Committee's recommendations

1. 683. 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 provide information on the present employment status of Mr Muchlish, indicating whether he is still exercising his functions as chairperson of the SEKAR–DPS and, if so whether he is granted access to the PT. DPS to enable him to carry out his representative function.
   • (b) Noting the divergent views of the complainant and the enterprise set out in the Government’s reply concerning the motivation for the transfer of Mr Muchlish, the Committee requests that the Government encourage dialogue between the union and the enterprise on the employment status of Mr Muchlish including, but not limited to, the possibility of rehiring him in another post, should he so desire and should this be practicable.
   • (c) The Committee requests the Government to keep it informed on any follow-up to the recommendation of the mediator of the Manpower Office of Surabaya City to the effect that the company revoke the suspension of Mr Arie Wibowo, general secretary of the SEKAR–DPS, and 16 other members of the union committee and pay back wages.
   • (d) As regards the indication from the Government that a negotiation is ongoing in the company concerning the reinstatement of the eight dismissed workers, the Committee requests the Government to make efforts to bring about a negotiated solution to this matter, particularly given the fact that, according to the Government, they were fired for having undertaken demonstrations in reaction to the firing of their chairperson and for not changing their attitude, and in a context where, according to the complainant but not refuted in the Government’s reply, attempts to discuss the matter in dispute went unanswered by the management. The Committee requests the Government to keep it informed of any progress made in this regard.
   • (e) The Committee requests the Government and the complainant to indicate whether the SEKAR–DPS is still organizing activities at the PT. DPS.
   • (f) 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 in this regard.