Solicitud directa (CEACR) - Adopción: 2024, Publicación: 113ª reunión CIT (2025)

Convenio sobre la discriminación (empleo y ocupación), 1958 (núm. 111) - Indonesia (Ratificación : 1999)

The Committee notes the observations submitted by the Indonesian Union of Plantation Workers (SERBUNDO) and transmitted to the Government on 21 November 2024. The Committee requests the Government to provide its comments in this respect.

The Committee notes that the Indonesian Union of Plantation Workers (SERBUNDO) made a representation under article 24 of the ILO Constitution alleging violations of Articles 1, 2 and 3 of the Convention, on the ground that existing national legislation and related practice would result in discrimination towards certain indigenous communities. The Committee notes that an ad hoc tripartite committee of the ILO Governing Body examined the representation and made conclusions and recommendations. The Governing Body concluded the procedure at its session in June 2021 (GB.342/INS/8/4).

Articles 1 and 2 of the Convention. Legislation concerning equality and non-discrimination. With reference to its previous comments on the matter, and more specifically to the Committee’s request for a copy of the study on the implementation of the Convention involving various actors which the Government had indicated having undertaken, the Committee notes that the Government now indicates, in its report, that the study is a legal review for internal use and of limited scope and that it is open to collaborating with the ILO to develop a comprehensive study on the implementation of the Convention in Indonesia.

Concerning its request for information on the practical application of the non-discrimination provisions contained in the Law No. 39 of 1999 concerning human rights and Law No. 40 of 2008 concerning the elimination of racial and ethnic discrimination and sections 5 and 6 of Law No. 13 of 2003 concerning manpower (Manpower Act), the Committee notes the Government’s reference to human trafficking cases addressed under Law No. 39 of 1999 and sections 5 and 6 of the Manpower Act. The Government also refers to dialogues with the social partners aimed at promoting the establishment of the Task Force for Equal Employment Opportunity (EEO Task Force) at the provincial, district/city, and company levels with the goal of preventing and eliminating discrimination in employment and occupation. Additionally, the Committee notes the Government’s indication that the labour inspectors have not recorded violations related to discrimination. Noting the absence of specific information on the practical application of the non-discrimination provisions contained in the Law No. 39 of 1999 concerning human rights and Law No. 40 of 2008 concerning the elimination of racial and ethnic discrimination and sections 5 and 6 of Law No. 13 of 2003 concerning manpower (Manpower Act) to cases involving the application of the principle of the Convention, the Committee asks the Government to gather and provide information on complaints concerning discrimination in employment and occupation filed with the courts and other competent authorities as well as any violations detected by the labour inspectorate. It also again encourages the Government to undertake a review of the law and practice, including complaints procedures, regarding discrimination in employment and occupation based on all the grounds referred to in the national legislation and included in Article 1(1)(a) of the Convention, in collaboration with the social partners, and to provide information on the results and recommendations arising out of such review. Please also provide information on the results achieved by the task forces for equal employment opportunities established at provincial, district/city and company levels in preventing and addressing discrimination in employment and occupation. The Committee furthermore asks the Government to take steps to enhance the capacity of enforcement authorities, as well as of social partners, to identify, prevent and address cases of discrimination, and to provide information on the actions undertaken in this regard.

Article 1(1)(a). Sexual harassment. The Committee notes the adoption of Law No. 12/2022 on Sexual Violence Crime, which covers also physical and non-physical sexual harassment. It notes that the Law defines sexual violence but does not define sexual harassment and does not specifically address sexual harassment in employment and occupation. The Committee also welcomes the adoption of Minister of Manpower Regulation No. 88 of 2023 concerning Guidelines for the Prevention of and Response to Sexual Violence in the Workplace. The Committee notes that these Guidelines update the previous guidelines in force since 2011 (SE.03/MEN/IV/2011) and cover both sexual violence and sexual harassment, encompassing also digital harassment and violence. They introduce the requirement that companies and/or employers should establish a sexual harassment prevention task force, which is to be also in charge of receiving and maintaining a record of complaints, and should provide compensation to victims of sexual harassment that are under their scope of supervision. The Committee notes the information provided by the Government about the promotional activities undertaken among the social partners with the expectation that the Guidelines will be taken into account in the formulation of company regulations and collective bargaining agreements. In addition, the Government informs about the creation of a 24-hour public complaint hotline for victims of violence and the provision of support services for victims, including psychological and physical health rehabilitation. The Committee notes from the ILO’s Survey on Violence and Harassment in the World of Work in Indonesia, which covered the experience of workers in Indonesia during the years 2020 to 2022, that 70.8 per cent of respondents have been victims of violence and harassment in the world of work, with supervisors and senior co-workers being the most frequent perpetrators. The Committee also notes that 34.5 per cent of respondents indicated that there were no anti-violence and harassment mechanisms in their workplace. Some respondents also shared that victim blaming is still a common phenomenon and some victims may be reluctant to report out of fear of not being believed or of the impact that the complaint may have on their career. These fears are often coupled with the belief that human resources and/or management will not take any action on the case. In view of the above, the Committee requests the Government to provide information on: (i) the application of the 2023 Guidelines for the Prevention of and Response to Sexual Violence in the Workplace, including number and examples of company regulations and collective bargaining agreements that were informed by the Guidelines, number and type of workplaces having established a sexual harassment prevention task force and main actions taken (including preventive measures put in place); (ii) the number of complaints received regarding sexual violence or harassment in employment and occupation and their outcomes; (iii) the measures taken or envisaged, in cooperation with the social partners, to address the main obstacles faced by victims of sexual harassment in employment and occupation in reporting cases and accessing remedies; and (iv) examples of application of Law No. 12/2022 on Sexual Violence Crime to cases of sexual harassment in employment and occupation and remedies accorded to the victims.

Discriminatory provisions. The Committee notes the Government’s indication, in reply to its previous comment, that section 29 of Regulation No. 35 of 2021, which implements the Manpower Act, provides that companies employing workers during overtime hours are obligated to provide food and beverages and that decency and security in the workplace are basic rights and necessities for both male and female workers that employers must provide without exception. In view of the above, the Committee encourages the Government to consider expanding the scope of application of section 76(3) and (4) of the Manpower Act (which requires employers to provide women working at night with food and drink, as well as transportation to and from the place of employment) to men workers in order to ensure consistency between relevant legal provisions and enhance coherent application of the legal framework in line with the principle of the Convention.

Discrimination on the ground of religion. The Committee recalls that Regulation of the Minister of Manpower No. 6 of 2016 on Religious Holiday Allowance for Employees/Workers, at section 1(2), recognizes religious holidays for six religions, namely Islam, Catholic and Protestant Christianity, Hinduism, Buddhism and Confucianism. With regard to its previous comment, the Committee notes the Government’s indication that there are several regional regulations with different arrangements regarding religious activities designed to accommodate local religious needs without being discriminatory towards workers or employees. Moreover, in order to accommodate the religious activities of civil servants, national regulations regarding public holidays have been established through joint decisions by the relevant Ministries. However, the Committee previously noted that the National Commission on Violence against Women, in its 2019 report on 25 Years of Implementing the Beijing Platform for Action in Indonesia (Beijing+25 report), indicated that “discriminatory policies against women and minority groups in the name of religion and morality are still issued by the Regional Government” (page 41). The Committee asks the Government to provide information on: (i) how in practice it is ensured that workers who belong to faiths other than those enumerated in Regulation No. 6 of 2016 are not discriminated against with regards to religious holiday allowances; (ii) any complaints received by the competent authorities concerning discriminatory treatment in employment and occupation on the basis of religion and/or on the basis of religion and gender, and their outcomes; and (iii) the measures taken to review local religious by-laws and to amend or repeal those that are contrary to the Convention.

Discrimination based on political opinion. With reference to the Committee’s previous comments on the fact that Government Regulations No. 5/1999, No. 98/2000, and No. 37/2004 provided for the dismissal of civil servants upon becoming members or leaders of political parties, the Committee notes the Government’s indication that these regulations were revoked and declared invalid following the adoption of Law No. 5 of 2014 on State Civil Administration and its implementing regulations, namely Government Regulation No. 11/2017 on Civil Servant Management, as amended by Government Regulation No. 17/2020, and Government Regulation No. 94/2021 on Civil Servant Discipline. The Committee notes, however, that Law No. 5 of 2014 is premised on the recognition that the country needs to build civilian personnel who, among other things, is neutral and free from political interference. Section 38(2) of this law stipulates that civil servants (ASN) shall not be members of a political party and/or hold political office. The Government explains that this provision is in line with the principle of neutrality of the “civil apparatus”. Referring to the Committee’s earlier comments, the Government indicates that limiting the prohibition of political activities only to certain positions has several shortcomings, including the difficulties inherent to monitoring its implementation, and the lack of neutrality of civil servants leading to discriminatory provision of services and conflict of interests. The Committee furthermore notes the Government’s statement that the prohibition for all civil servants to become members or officials of political parties must continue to be upheld in order to maintain neutrality and ensure that all duties and responsibilities of civil servants are carried out without political intervention and free of the interests of specific groups. The Government additionally indicates that such prohibition is also based on the consideration that every civil servant, especially those holding strategic government positions at both central and local levels, may possess significant authority and/or resources that can influence the public during general elections, which in turn would jeopardize the national democratic process. Noting the information provided by the Government, the Committee emphasizes, once again, that under Article 1(2) of the Convention, distinctions, exclusions or preferences in respect of a particular job should correspond in a concrete and objective way to the inherent requirements of a specific and definable job, function or tasks, for example of certain posts involving special responsibilities. In this regard, limitations imposed on civil servants holding strategic government positions could be admissible. However, the inherent requirements of the particular job must be evaluated in the light of the actual bearing of the tasks performed. The systematic application of requirements involving one or more of the grounds of discrimination set out in the Convention is not admissible (see General Survey of 2012 on the fundamental Conventions, paragraphs 828 et seq.). Therefore, while taking due note of the explanations it provided, the Committee asks the Government to explore, in collaboration with the social partners, measures alternative to dismissal in case of political engagement of civil servants, taking into account the inherent requirements of the jobs concerned, as strictly defined.

Articles 2 and 3. Equality of opportunity for men and women. In relation to its previous observation, the Committee notes that the Government provides information about a number of initiatives undertaken in collaboration with the social partners with a view to promoting equality of opportunity and treatment for men and women in the world of work, such as developing guidelines for non-discrimination in the workplace, providing for equal treatment in company regulations and collective bargaining agreements, and encouraging companies to establish a help desk to address complaints related to discriminatory practices, including sexual harassment. The Government also acknowledges some challenges in its efforts to promote the principle of the Convention, including budgetary limitations, lack of coordination among relevant actors, rapid staff rotation in some regional and local governments and some misunderstandings related to the nature and functions of the EEO Task Force which impact on its work. Concerning the Action Plan of the EEO Task Force, the Committee notes the Government’s indication that an evaluation of the earlier Plan – which ran from 2013 to 2019 – is foreseen and will inform the development of the new Plan.

As regards the measures adopted to promote the application of the principle of the Convention to men and women rural workers, the Committee notes the Government’s reference to Law No. 6/2014 on Villages which designates villages as subjects of development with the authority to determine the direction and outcomes of development within their communities. Within this framework, efforts to empower women to achieve “gender-just villages” are carried out at village and district levels. In addition, women’s schools have been created in remote mountain villages and small islands far from public access, among other areas, with the aim to promote women’s leadership. They currently serve 85 villages. The Committee also notes from the statistics provided by the Government that, as of February 2023, women represented 34.1 per cent of all workers engaged in formal employment and accounted for 42.7 per cent of all workers in informal employment. Moreover, the National Labour Survey indicates that, as of February 2023, out of approximately 54.4 million working women, 34.6 per cent were engaged in formal employment. The Committee also notes that, according to the ILO Database of Labour Statistics (ILOSTAT), in 2022, 52.5 per cent of working age women participated in the workforce, compared with 81.5 per cent of working age men. The Committee notes the concerns expressed by the United Nations (UN) Committee on Economic, Social and Cultural Rights regarding the large gender disparity in labour market participation, mainly owing to persistent gender stereotypes and the unequal sharing of family responsibilities between women and men (E/C.12/IDN/CO/2, 14 March 2024, paragraph 28). In this regard, the Committee welcomes the launch of the Indonesia’s Road Map on Care Economy for a more Gender Equal World of Work (2025-2045) by the Ministry of Women Empowerment and Child Protection, with support from the ILO. The Committee notes that the Road Map addresses seven priorities, namely: (1) developing accessible, quality childcare services; (2) strengthening elderly and long-term care services; (3) improving inclusive, integrated care services for peoples with disabilities, HIV, special needs and other vulnerable groups; (4) enhancing greater access to maternity leave; (5) increasing the involvement of men, including paternity leave; (6) recognizing decent work for care workers; and (7) implementing social protection for those workers in the care economy.

The Committee requests the Government to continue to provide information on the measures adopted, in collaboration with the social partners, to promote equality of opportunity and treatment for men and women in employment and occupation, in both the private and public sectors, and the results achieved, including specific information on: (i) the results of the evaluation of the Action Plan (2013 to 2019) of the National Task Force on Equal Employment Opportunities, including main lessons learned and recommendations, and the progress made towards adopting a new Action Plan; (ii) the measures adopted to promote equality of opportunity and treatment for men and women rural workers, including the impact of the “gender-just villages” on equal access to education and work and equal working conditions; and (iii) the implementation of the Road Map on Care Economy 2025–2045, as far as its impact on the principle of the Convention is concerned. Please also continue to supply statistical information on the distribution of men and women in the various sectors, occupations and positions, in the formal and informal economies.

Access to vocational training and guidance. The Committee notes the Government’s indication, in reply to its previous observation, that the number of female registrants and participants in vocational training is 46.1 per cent and that women are participating also in training programmes traditionally associated with men, such as electrical technicians, bus drivers, security professions, pilots, racers, captains, and bartenders, among others. The Government furthermore informs that, according to the report of Competency-Based Training (CBT/PBK) at the Vocational Training Center under the Ministry of Manpower, in the first semester of 2023, 48.5 per cent of participants in competency-based training were female. The Committee asks the Government to continue its efforts to promote women’s access to a wider range of vocational training courses, including those in which men traditionally participate and those leading to opportunities for advancement, and to gather and provide information on the results achieved as well as statistical information on the number of men and women participating in vocational training, with an indication of the types of courses attended and completed.

Article 5(2). Affirmative action. Concerning measures directed at indigenous Papuans, including those adopted under section 62(2) and (3) of the Special Autonomy Law for Papua which provides for affirmative action to support indigenous Papuans’ access to employment, the Committee notes the Government’s reference to the Work Skills Education (PKK) and Entrepreneurial Skills Education (PKW) programs undertaken under the Directorate General of Vocational Education of the Ministry of Education, Culture, Research, and Technology and the provision of special training packages, along with the requirement that Papua people be prioritized in the participation of all government programmes, including trainings, according to an 80 to 20 per cent ratio. The Government also informs that 60 to 80 per cent of civil servant positions in in the South Papua Province, Central Papua Province, Papua Highlands Province, and Southwest Papua Province are to be filled by Papuans, as prescribed in Regulation No. 5 of 2023 of the Minister of State Apparatus Utilization and Bureaucratic Reform. The Committee asks the Government to continue to provide information on the affirmative action measures adopted in favour of indigenous Papuans and to gather and supply information on their impact in practice on ensuring that they enjoy in practice equality of opportunity and treatment in employment and occupation with the rest of the population, including statistical information regarding their enrolment in vocational training and recruitment in both public and private sectors.

Follow-up to the recommendations of the tripartite committee (representation made under article 24 of the Constitution of the ILO)

Articles 1 to 3. Equality of opportunity and treatment irrespective of race, colour and national extraction. Adat/customary law communities (masyarakat hukum adat). The Committee recalls that the ad hoc tripartite committee of the ILO Governing Body that examined the representation (hereinafter, the Tripartite Committee) noted that: (1) in its representation, the Indonesian Union of Plantation Workers (SERBUNDO) alleged that the Ompu Ronggur community and its members suffered discrimination, in respect of their ability to continue to perform their traditional occupations, in that they do not enjoy access to land and resource rights on an equal footing with the rest of the population (paragraph 45); (2) both the complainant and the Government made reference to legislation concerning “customary law communities” as the relevant framework to address the case, referring in particular to the fact that in order for “customary law communities” to claim their traditional rights over customary lands, including forests, they must first be officially recognized as “still existing” through local legislation/regulations (paragraphs 52 and 53); and (3) “the crux of the matter seem[ed] to reside, first and foremost, in the request for recognition of the status of ’customary law community’ by the Ompu Ronggur in order to secure access to a specific portion of land to perform their traditional occupations” (paragraph 56). Given the information available and the divergence of opinions regarding the status of the procedure that would allow the Ompu Ronggur community to access the portion of the land where they claim to carry out their traditional occupations, and in order to expedite the process, the Tripartite Committee invited the complainant organization to provide the Government with all the necessary documentation linked to their original request. The Tripartite Committee expected that this would allow the relevant bodies to examine without delay the documentation and issue a decision. It called on the Government to ensure that the decision taken would be in full conformity with the Convention (paragraph 57). The Committee notes that the Governing Body invited the Government of Indonesia to send information concerning the Tripartite Committee’s conclusions in its next report on the application of the Convention.

The Committee notes that the Government informs on some follow-up actions taken. The Government indicates that the Ministry of Environment and Forestry conducted some verification on the request for recognition of the status of “customary law community” by the Ompu Ronggur and established a dedicated team for this purpose. The Committee notes that the team comprised officials from the Ministry of Environment and Forestry, academics from Bogor Agricultural Institute (IPB), North Sumatra University, Forest Management Unit (KPH), local governments of Toba and Tapanuli Utara Regencies, the non-governmental organization Aman Tano Batak, and the Study Group for People’s Initiative Development (KSPPM). The team undertook field identification and verification activities and found conflicting claims by the Ompu Ronggur community and the neighbouring communities as well as unclarity concerning the boundaries of the customary territory. The Government states that, due to these issues, the request for recognition of the status of “customary law community” filed by the Ompu Ronggur cannot be considered yet. It indicates that the communities concerned should “address their internal issues through facilitation by support groups and the local government”. The Committee also notes the Government’s statement that the matter is not labour-related and is an internal issue within the local government. In this regard, the Committee recalls that, as noted at the outset by the Tripartite Committee (paragraph 48), the Convention applies to all workers, including self-employed workers in the rural sector such as the Ompu Ronggur, and that their traditional occupations (such as farming, hunting and handicraft production, among others) are ”occupations” within the meaning of the Convention and are dependent on access to land (see the General Survey of 1988 on equality in employment and occupation, paragraphs 89–90, and the 2012 General Survey on the fundamental Conventions, paragraph 752). The Committee also refers to its 2018 general observation on discrimination based on race, colour and national extraction in which it observed that unsecure land tenure and biased approaches towards the traditional occupations engaged in by certain ethnic groups, continue to pose serious challenges to the enjoyment of equality of opportunity and treatment in respect of occupation for many persons. It also underscores that promoting and ensuring access to material goods and services required to carry out an occupation, such as secure access to land, without discrimination, is one of the objectives of a national policy on equality under Article 2 of the Convention (2012 General Survey on the fundamental Conventions, paragraph 768; 2018 general observation). Persisting disputes around land claims and uncertain boundaries in the present case are an aspect of the land tenure insecurity that should be addressed within the national equality policy under Article 2 of the Convention, as an essential component of the measures aimed at ensuring secure access to land without discrimination and thus access to and engagement in occupation without discrimination for the adat law communities concerned.

Concerning the overall context, the Committee also notes the concerns expressed by the United Nations (UN) Committee on Economic, Social and Cultural Rights (CESCR) about: (1) the ongoing problems in the recognition of Indigenous Peoples in Indonesia, which imposes challenges with regard to formal legal registration of their collective rights to land; and (2) the reports of dispossession, displacement and relocation of Indigenous Peoples from their customary lands and territories, often without respecting their right to free, prior and informed consent. The CESCR recommended, inter alia, that the Government enact the Indigenous Peoples’ rights bill in order to simplify the process of recognition of Indigenous Peoples and their customary lands (E/C.12/IDN/CO/2, 14 March 2024, paragraphs 16 and 17). The Committee also notes that the National Human Rights Commission (Komnas HAM), in its national inquiry of 2015 on “the right of indigenous peoples on their territories in the forest zones”, found that: (1) very few customary law communities have obtained official recognition and that, in the absence of such recognition, they lack security of tenure, the boundaries of their territories are uncertain and, since the location of the boundaries of their communal forest is based on oral tradition (unwritten), which is not recognized by the Government, “[the Government] arbitrarily treats any ‘forest’ as ‘state forest’”; (2) in practice, local governments do not give recognition and some even expressly deny the existence of certain indigenous peoples; (3) many forest tenure conflicts and human rights violations over indigenous peoples’ territories in the forest zone have not been resolved due to lack of venues and understaffed agencies; (4) access to claim settlement is through the district Courts, which for some people, especially villagers, has many barriers, and that even where using the district Courts is possible, this is difficult administratively as the Ministry of Forestry is reluctant to release forest areas to communities; and (5) as a result, conflicts and human rights abuses continue to occur and lead to many forms of discrimination, stigmatization and criminalization of indigenous peoples (English summary, pages 14 and 18).

In light of the above the Committee asks the Government:

• (i) to take proactive measures, in consultation with the social partners and the concerned communities, and with the involvement of local governments, to address the barriers currently faced by communities such as the Ompu Ronggur in obtaining recognition of the status of “customary law community” in order to secure access to land to perform their traditional occupations, including facilitating the solution of land disputes with the neighbouring communities and adopting the necessary temporary measures to protect the rights of all communities involved pending the resolution of the disputes and the official recognition of their rights, and to ensure enjoyment of equality of opportunity and treatment in respect of occupation;
• (ii) to review, with the participation of the social partners and the interested groups, the current legal framework governing access to land and natural resources for adat law communities and the associated practices to ensure that they guarantee secure access to land and natural resources without discrimination on the grounds of race, colour and national extraction, and repeal any discriminatory aspects affecting the ability of adat law communities to engage in and continue to perform their traditional occupations (see, also, the Committee’s pending observation on the application of Articles 2 and 3 of the Convention in the country); and
• (iii) to adopt the necessary measures to ensure that the situation of legal uncertainty concerning many adat law communities does not impair their access to legal remedies and legal protection, and thus does not have discriminatory repercussions on their equality of opportunity and treatment in respect of occupation.

Please provide detailed information on the steps taken in respect of the points listed above as well as on any action taken in response to the recommendations formulated by the National Human Rights Commission (Komnas HAM), in its national inquiry of 2015 on “the right of indigenous peoples on their territories in the forest zones”.