Observation (CEACR) - adopted 2011, published 101st ILC session (2012)

Right to Organise and Collective Bargaining Convention, 1949 (No. 98) - Indonesia (Ratification: 1957)

Articles 1 and 2 of the Convention. Protection against acts of anti-union discrimination and employer interference. The Committee’s previous comments concerned the need to ensure effective and rapid protection against acts of anti union discrimination and employer interference in practice. The Committee notes that the Government indicates in its report that three types of measures can be taken by the Labour Inspector to ensure protection against discrimination: (1) education measures (including counselling); (2) investigation and report on cases; and (3) if the employer does not act upon the conclusions of a report of the Labour Inspector, the latter may issue investigation minutes. The Government further indicates that these measures are carried out in accordance with Decree No. 03 of 1984 of the Minister of Manpower, concerning integrated monitoring, which is currently under review.

Moreover, the Committee notes the comments made by the International Trade Union Confederation (ITUC) in a communication dated 4 August 2011, concerning in particular anti-union dismissals of union leaders and members, as well as the creation of yellow unions.

It further notes the conclusions and recommendations of the Committee on Freedom of Association (Case No. 2737, 358th Report, November 2010), in which the Committee recalls: (1) 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 of 2000 is insufficient; and (2) that while the Act contains a general prohibition in article 28 accompanied by dissuasive sanctions in article 43, it does not provide any procedure by which workers can seek redress. The Committee on Freedom of Association urged 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 concludes, from the Government’s report, that existing measures to ensure effective and rapid protection against acts of anti union discrimination and employer interference in practice only consist in investigations conducted by an administrative authority. Moreover, the Government does not indicate in its report that dissuasive sanctions against such acts may be imposed.

Noting that in its report submitted under the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), the Government indicates that it is conducting a review of the Trade Union/Labour Union Act No. 21 of 2000, the Committee requests 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 requests the Government to provide information on steps taken in this regard. It also once again requests the Government to provide data on the number of complaints of anti-union discrimination filed with the labour inspectorate and the courts, and the steps taken to investigate these complaints and impose remedies where appropriate, as well as the average duration of proceedings. It further requests the Government to provide a copy of Decree No. 03 of 1984 of the Minister of Manpower. The Committee invites the Government to make full use of ILO technical assistance in these regards, as well as in order to provide training for the authorities competent to deal with cases of anti-union discrimination and employer interference.

Article 2. Protection against acts of interference. The Committee’s previous comments concerned the need to amend section 122 of the Manpower Act so as to discontinue the presence of the employer during a voting procedure held in order to determine which trade union shall have the right to represent the workers in an enterprise. The Committee notes that the Government once again indicates that employers and the Government are present only as witnesses during voting and have no effect on the voting by trade unions and workers and that it has therefore not given any consideration to a possible amendment of section 122 of the Manpower Act. Recalling the need to ensure adequate protection against acts of interference in practice, the Committee reiterates its previous comments and requests the Government to indicate in its next report the steps taken to amend section 122 of the Manpower Act so as to suppress the presence of the employer during voting procedures.

Article 4. Promotion of collective bargaining. In its previous comments, the Committee had requested the Government to amend sections 5, 14 and 25 of Act No. 2 of 2004 concerning industrial relations dispute settlement, which enables either of the parties to an industrial dispute to file a legal petition to the Industrial Relations Court for final settlement of the dispute if conciliation or mediation failed. The Committee notes that the Government considers that Act No. 2 of 2004 only defines the existence of voluntary arbitration, rather than compulsory arbitration. The Committee observes, however, that Act No. 2 of 2004 refers both to voluntary arbitration and, in sections 5, 14 and 25, to compulsory arbitration by allowing one of the parties to a dispute to file a petition to the Industrial Relations Court. Noting that the ability of one or other of the parties to a dispute, including when there is no arbitration request from the parties, to refer the dispute to the Court constitutes compulsory arbitration, the Committee recalls that compulsory arbitration at the initiative of one party to the dispute cannot be considered to promote voluntary collective bargaining. The Committee once again requests the Government to indicate in its next report the measures taken or contemplated to amend sections 5, 14 and 25 of Act No. 2 of 2004 concerning industrial relations dispute settlement so as to ensure that, except in the case of essential services in the strict sense of the term, compulsory arbitration may be imposed only where it is agreed upon by both parties to the dispute.

Requirements for the exercise of collective bargaining. In its previous comments, the Committee noted that, under section 119 of the Manpower Act, in order to negotiate a collective agreement, a union must have membership equal to more than 50 per cent of the total workforce in the enterprise or receive more than 50 per cent support in a vote of all the enterprise’s workers on its demands. The Committee noted that unions not attaining 50 per cent support in such a vote could only engage in collective bargaining after a period of six months is passed since the vote. The Committee notes the Government’s indication that this issue is under review. The Committee is therefore bound to reiterate that it considers that these provisions render the exercise of collective bargaining difficult for these unions and once again requests the Government to take the necessary measures to repeal the requirement for a delay of six months before which minority unions may bargain collectively.

The Committee also notes that the Government indicates that collective agreements must be concluded within 30 days after the beginning of negotiations. In this regard, the Committee wishes to recall that the parties should be able to continue the negotiation of a collective agreement, if they so wish, even after this delay has expired. Furthermore, in case a collective agreement already exists, the parties should be able to start the negotiations of a future agreement as early as they wish before the end of the current one. The Committee requests the Government to take the necessary measures to ensure that these principles concerning the free and voluntary exercise of collective bargaining are applied and to provide information on any developments in this regard.

Federations and confederations. In its previous comments, the Committee had requested the Government to provide data concerning the number and type of current collective agreements that were signed by federations or confederations of trade unions. The Committee notes that, while the Government confirms that there is no rule or regulation prohibiting federations and confederations from engaging in collective bargaining, it indicates that there has been no report of federations and confederations having signed collective agreements. The Committee requests the Government to ensure that information concerning collective agreements signed by federations or confederations of trade unions is publically available, and to continue to provide information in this regard.

Export processing zones (EPZs). In its previous observation, the Committee had requested the Government, pursuant to allegations of violent intimidation and assault of union organizers, and dismissals of union activists in the EPZs, to provide information on the number of collective agreements in force in the EPZs and the percentage of workers covered, as well as on the number of complaints of anti-union discrimination and employer interference in EPZs and the relevant investigation and remediation measures. While noting the Government’s indication that it shall coordinate with local governmental entities in order to be able to provide such information, the Committee notes with regret that the Government has not provided the requested information. The Committee once again requests the Government to provide in its next report data concerning the number of collective agreements and workers covered by collective bargaining in EPZs, as well as on the number of complaints of anti-union discrimination and employer interference in EPZs and the relevant investigation and remediation measures.