Effect given to the recommendations of the committee and the Governing Body - Report No 353, March 2009

Case No 2441 (Indonesia) - Complaint date: 18-JUL-05 - Closed

Effect given to the recommendations of the Committee and the Governing Body

1. 116. The Committee last examined this case, which concerns anti-union dismissal, harassment of and threats of violence against trade union leaders, and shortcomings in the legislation at its March 2008 meeting, where it requested the Government to: take necessary measures to reinstate Mr Sukamto without loss of wages or benefits; review section 158(1)(f) of the Manpower Act of 2003 to ensure that the term “gross misconduct” is not interpreted so as to include legitimate trade union activities; and conduct an independent investigation without delay into the allegations of harassment, threats and defamatory statements with a view to clarifying the facts, determining criminal responsibility, if any, and punishing those responsible. The Committee requested the Government to keep it informed of developments in this regard, including any court decisions handed down with regard to Mr Sukamto [see 349th Report, paras 148–151].
2. 117. In a communication dated 18 September 2008, the Government indicated that the decision of the P4D of 21 June 2005 which gave permission to terminate Mr Sukamto without severance pay is a final decision with legal effect. All appeals filed to the P4D, State Administrative High Court of Jakarta and Supreme Court were turned down (Supreme Court Decision No. 93 K/TUN/2007).
3. 118. The Committee expresses its profound regret at the fact that the appeals filed by Mr Sukamto were rejected. It recalls once again the circumstances surrounding Mr Sukamto’s dismissal, which have never been contested by the Government. Mr Sukamto was dismissed due to the recommendation he made to the workers in respect of the employer’s proposal on a wage increase. It was in this context that the Committee had requested the Government to ensure his reinstatement and to review the Manpower Act in force so as to ensure that the term “gross misconduct” may not be interpreted so as to include legitimate trade union activities [see 342nd Report, para. 620]. The Committee recalls that when a State decides to become a Member of the Organization, it accepts the fundamental principles embodied in the Constitution and the Declaration of Philadelphia, including the principles on freedom of association [see Digest of decisions and principles of the Freedom of Association Committee, fourth edition, 1996, para. 15.] One of these fundamental principles 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. Furthermore, although the holder of trade union office does not, by virtue of his or her position, have the right to transgress legal provisions in force, these provisions should not infringe the basic guarantees of freedom of association, nor should they sanction activities which, in accordance with the principles of freedom of association, should be considered as legitimate trade union activities [see Digest, op. cit., paras 799 and 40].
4. 119. In these circumstances and recalling once again the seriousness of the matters raised in the present case, the Committee strongly urges the Government to take immediate steps to comply with fundamental principles of freedom of association by implementing all of its previous recommendations and, in particular, to reinstate Mr Sukamto without loss of wages or benefits or to ensure that he receives adequate compensation to act as a sufficiently dissuasive sanction against anti-union discrimination; review section 158(1)(f) of the Manpower Act of 2003 to ensure that the term “gross misconduct” is not interpreted so as to include legitimate trade union activities; and conduct an independent investigation into the allegations of harassment, threats and defamatory statements with a view to clarifying the facts, determining criminal responsibility, if any, and punishing those responsible. The Committee requests the Government to keep it informed of developments in this regard.