Observation (CEACR) - adopted 2012, published 102nd ILC session (2013)

Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87) - Indonesia (Ratification: 1998)

The Committee notes the comments made by the International Organisation of Employers (IOE) on the right to strike, in a communication dated 29 August 2012, which are dealt with in the General Report of the Committee.

The Committee also notes the response of the Government to the comments made by the International Trade Union Confederation (ITUC) in 2011. However, the Government does not respond to certain allegations, in particular those relating to violence against striking workers and acts of intimidation against union leaders. The Committee further notes that, in its response to new comments made by the ITUC in a communication dated 31 July 2012, which relate to a number of matters already raised by the Committee, as well as violations of the Convention, the Government also fails to respond to serious allegations relating to excessive violence and arrests in relation to demonstrations and police involvement in strike situations, including in one case of recourse to firing that led to the death of two strikers. The Committee notes that the Government only reiterates in connection with the police role in strikes that it has been regulated in Kapolri Regulation No. 1/2005 (Guidelines on the conduct of the Indonesian Police to ensure law enforcement and order in industrial disputes). The Committee requests the Government to provide its observations on the abovementioned allegations. It further requests it to take all necessary measures to ensure that the use of excessive violence in trying to control demonstrations is avoided, that arrests are made only where serious violence or other criminal acts have been committed, and that the police are called in a strike situation only where there is a genuine and imminent threat to public order.

Trade union rights and civil liberties. In its previous comments, the Committee requested the Government to take the necessary measures to repeal or amend sections 160 and 335 of the Penal Code, respectively on “instigation” and “unpleasant acts”, so as to ensure that these provisions cannot be used abusively as a pretext for the arbitrary arrest and detention of trade unionists. The Committee notes that the Government indicates in its report that progress on the amendment of the Code is still under discussion between ministries. The Committee reiterates its hope that, in the framework of the review of the Penal Code, sections 160 and 335 will be repealed or amended, and requests the Government to provide information on the developments in this regard.

Article 2 of the Convention. Right to organize of civil servants. In its previous comments, the Committee expressed the hope that the Government will adopt an act guaranteeing the exercise of the right to organize to civil servants, pursuant to section 4 of Act No. 21 of 2000, which proclaims that civil servants shall enjoy freedom of association and that the implementation of this right shall be regulated in a separate act, so as to bring the legislation into full conformity with the Convention. The Committee notes that the Government reiterates that there is no prohibition for civil servants to form unions and that the absence of specific legislation on the right to organize of civil servants is the result of the fact that political will from all parties is still needed. In this context, the Committee requests the Government to indicate in its next report any development in this regard.

Right to organize of employers. In its previous comments, the Committee requested the Government to specify whether employers’ organizations could be established independently of the Indonesian Chamber of Commerce and Industry (KADIN). The Committee notes that the Government reiterates that the Indonesian Employers’ Association (APINDO), which is affiliated to KADIN, is an independent employers’ organization. The Committee notes that the Government adds that there is no restriction in Act No. 1/1987 creating KADIN to the possibility of forming other employers’ organizations.

Article 3. Right of workers’ organizations to organize their activities and formulate their programmes. In its previous comments, the Committee made a number of requests to the Government in relation to the conditions for the exercise of the right to strike, in particular in relation to: the conditions for the determination of failed negotiations (section 4 of Ministerial Decree No. KEP.232/MEN/2003); the conditions for the issuance of back-to-work orders (section 6(2) and (3) of Ministerial Decree No. KEP.232/MEN/2003); the extensive time period accorded to mediation/conciliation procedures (Industrial Relations Dispute Settlement Act No. 2 of 2004); and the imposition of criminal conviction for violation of certain provisions in relation to the right to strike (section 186 of the Manpower Act). The Committee notes that the Government indicates in its report that a review of Ministerial Decree No. KEP.232/MEN/2003 (concerning section 4, the Government indicates that, in practice, the determination of failed negotiations is left to the parties) and of Act No. 2 of 2004 is under way, in consultation with the relevant stakeholders. It also notes that the Government indicates, in relation to section 186 of the Manpower Act, that it has not yet considered amending it. The Committee expresses the firm hope that, in the context of the review of the legislation, its previous comments will be taken into account so as to bring the legislation into conformity with the principles of freedom of association. It requests the Government to provide information in its next report on steps taken in this regard.

Article 4. Dissolution and suspension of organizations by administrative authority. In its previous comments, the Committee had noted that if trade union officials violate either section 21 or 31 of Trade Union/Labour Union Act No. 21 of 2000 – by either failing to inform the Government of any changes in the union’s constitution or by-laws within 30 days or failing to report any financial assistance coming from overseas sources – serious sanctions can be imposed under section 42 of the Trade Union/Labour Union Act, namely, the revocation and loss of trade union rights or suspension. Considering that such sanctions are disproportionate, the Committee requested the Government to indicate the measures taken or contemplated so as to repeal the reference to sections 21 and 31 in section 42 of the Trade Union/Labour Union Act. The Committee also requested the Government to indicate the measures taken or contemplated so as to ensure that organizations affected by measures of dissolution or suspension by the administrative authority have a right of appeal to an independent and impartial judicial body, and that such administrative decisions do not take effect until that body issues a final decision. Noting that the Government reiterates that it is conducting a review of Trade Union/Labour Union Act No. 21 of 2000, the Committee expresses the hope that, in the framework of this review, the Government will fully take into account the Committee’s comments. It requests the Government to provide information on developments in this regard.

The Committee reminds the Government that if it so wishes it may take advantage of technical assistance from the International Labour Office in relation to the issues raised in these comments.

The Committee is raising other points in a request addressed directly to the Government.