ILO-en-strap
NORMLEX
Information System on International Labour Standards

Informe definitivo - Informe núm. 265, Junio 1989

Caso núm. 1431 (Indonesia) - Fecha de presentación de la queja:: 15-DIC-87 - Cerrado

Visualizar en: Francés - Español

  1. 104. The Committee has already examined this case and submitted interim
    • conclusions to the Governing Body which were approved at its 241st Session,
    • November 1988 (see 259th Report, paras. 679-708). The Government sent further
    • observations on the case in a communication dated 16 February 1989.
  2. 105. Indonesia has not ratified the Freedom of Association and Protection of
    • the Right to Organise Convention, 1948 (No. 87); it has ratified the Right to
    • Organise and Collective Bargaining Convention, 1949 (No. 98).

A. Previous examination of the case

A. Previous examination of the case
  1. 106. At its November 1988 meeting, the Committee noted that this case
    • involved a general allegation by the International Confederation of Free Trade
    • Unions (ICFTU) of restrictions on trade union rights in Indonesia based on the
    • following specific criticisms of the industrial relations legislation: (1) ban
    • on the right to organise in trade unions for all public servants, teachers and
    • employees of government-owned or controlled corporations; (2) insufficient
    • protection against anti-union discrimination and interference contrary to
    • Articles 1 and 2 of Convention No. 98; (3) restrictions on collective
    • bargaining contrary to Article 4 of Convention No. 98; (4) restrictions on the
    • exercise of the right to strike.
  2. 107. As regards the first allegation which specifically concerned public
    • servants, the Committee noted the Government's response that since conditions
    • of employment for public sector employees are set by special laws and
    • regulations, collective agreements as a trade union function do not apply. It
    • also noted the Government's reference to the sole civil servants' association,
    • KORPRI, as having a negotiating role between civil servants and their
    • employer, the Government. While noting the Government's general assertion that
    • the principles of freedom of association are contained in Indonesian statutes,
    • the Committee regretted the lack of detailed information on KORPRI, in
    • particular on the alleged influential role played in it by the authorities,
    • evidenced by the fact that the Minister of Internal Affairs is Chairman of
    • KORPRI's Central Board.
  3. 108. As regards the alleged denial of the right to organise in unions facing
    • employees of government-owned or controlled corporations, of state enterprises
    • and teachers, the Committee again noted the Government's general assertion
    • that freedom of association exists but that it appeared that any associations
    • formed could not pursue trade union objectives.
  4. 109. As regards Articles 1 and 2 of Convention No. 98, the Committee noted
    • that the Committee of Experts on the Application of Conventions and
    • Recommendations had been calling on the Government for many years to
    • strengthen its legislative provisions against anti-union discrimination so as
    • to accord protection to workers at the time of recruitment and during
    • employment against prejudicial acts carried out by employers or interference
    • by their organisations in the establishment of workers' organisations. While
    • noting the Government's general denial of these shortcomings and its reference
    • to the Pancasila philosophy for industrial relations, the Committee reiterated
    • the Committee of Experts' request that more specific provisions be enacted to
    • ensure full conformity with the requirements of Articles 1 and 2 of Convention
  5. No. 98.
  6. 110. As for the alleged restrictions on collective bargaining, the Committee
    • noted that the Government supplied certain statistics on collective labour
    • agreements and company regulations. However, it observed with concern that -
    • despite KORPRI's potential involvement in negotiations - the Government had
    • clearly stated that collective agreements were not applicable for public
    • sector workers. The Committee recalled that, under Article 6 of Convention No.
  7. 98, only public services engaged in the administration of the State are not
    • covered by the Convention's provisions.
  8. 111. Lastly, as regards the alleged restrictions on the right to strike, the
    • Committee noted with concern the very extensive list of non-essential services
    • and industries scheduled in Presidential Decision No. 123 of 1963 in which
    • strike action is banned (including state-run agencies such as tourist hotels,
    • department stores and the Ancol pleasure park). While noting the Government's
    • claim that withdrawal of these services could be detrimental to human life and
    • that strikes should only be used as a last resort, it recalled the principle
    • that strikes may be restricted or prohibited in essential services in the
    • strict sense of the term, namely, where an interruption would endanger the
    • life, personal safety or health of the whole or part of the population.
  9. 112. On this same point, the Committee noted that the Government made no
    • specific comment on the ICFTU's allegation that Act No. 22 of 1957 on the
    • settlement of labour disputes sets up a system of compulsory arbitration which
    • makes strikes impossible in practice, apart from stating that strikes should
    • be used only as a last resort. It recalled its position on conciliation and
    • arbitration procedures which are not agreed to by both parties to the
    • industrial dispute, namely, that the substitution, through legislative means,
    • of compulsory arbitration for the right to strike as a means of resolving
    • labour disputes can be justified only in certain circumstances, in particular
    • in essential services in the strict sense of the term (i.e. those whose
    • interruption would endanger the life, personal safety or health of the whole
    • or part of the population).
  10. 113. On the basis of the Committee's conclusions summarised above, the
    • Governing Body approved the following interim recommendations:
      • a) As regards the alleged ban on the right to organise in trade unions
    • applying to public servants and all state employees working in
    • government-owned or controlled enterprises, and teachers, the Committee
    • recalls that all workers, without distinction whatsoever, should enjoy the
    • right to establish organisations to further and defend their interests.
      • b) It requests the Government to supply more information on the activities
    • of the KORPRI (the civil servants' association), the PGRI (the teachers'
    • association) and any other associations set up for public and para-public
    • servants to protect their interests, e.g. in collective bargaining, grievance
    • procedures.
      • c) The Committee requests the Government to review the legislative monopoly
    • situation establishing KORPRI as the sole association for civil servants so as
    • to permit civil servants to join organisations of their own choosing.
      • d) The Committee reiterates the observations of the Committee of Experts on
    • the Application of Conventions and Recommendations as regards the legislative
    • shortcomings for full observance of Articles 1 and 2 of Convention No. 98 and
    • as regards the limits on collective bargaining inconsistent with Article 4 of
    • the same Convention; it draws these aspects of the present case to the
    • attention of the Committee of Experts.
      • e) The Committee requests the Government to take steps for the amendment of
    • Presidential Decision No. 123 of 1963 which contains a too broad list of
    • services deemed to be essential, in which strike action is prohibited, but
    • which go beyond the Committee's definition of essential services.
      • f) The Committee requests the Government to supply more detailed
    • observations on the allegation that Act No. 22 of 1957 on the settlement of
    • labour disputes sets up a system of compulsory arbitration which in fact makes
    • strikes impossible.
    • B. The Government's further observations
  11. 114. In a letter dated 16 February 1989, the Government repeats that freedom
    • of association and collective bargaining in labour matters are fully respected
    • in Indonesia since they are embodied in the Constitution and other
    • legislation. It asks that full consideration be given to the fact that
    • Indonesia is "now in the process of development towards the most suitable
    • pattern" of applying these rights, especially because historical experiences
    • have indicated that freedom of expression without full responsibility has
    • resulted in huge problems which endangered the integrity of Indonesia as a
    • State.
  12. 115. Turning to the Committee's specific recommendations made in November
  13. 1988, the Government explains that as regards the right to organise in trade
    • unions of government or public enterprise employees, it fully secures the
    • rights to organise for every citizen either to be or not to be a member of any
    • organisation, including a trade union. But in spite of this, any public
    • servant or employee of public enterprises should obey the existing
    • regulations, one of which is the requirement of being a member of KORPRI
    • ("Korps Pegawai Republik Indonesia" or Civil Servants' Corps). The Government
    • states that those who do not intend to become a member of KORPRI should decide
    • not to be a public servant or employee of public enterprises. Freedom of
    • choice to be a member of government service or a state enterprise employee is
    • a basic human right of every citizen, which is highly appreciated in
    • Indonesia. It explains that KORPRI is a "corps" and cannot be considered as a
    • workers' organisation or trade union, whereas the Teachers' Association of the
    • Republic of Indonesia (PGRI) is a professional organisation which aims at
    • developing education, improving professionalism of teachers, and contributing
    • concepts for better educational development. According to the Government,
    • members of PGRI may also become members of KORPRI, and members of KORPRI may
    • also be members of PGRI. Likewise, there are members of the All-Indonesian
    • Workers' Federation (SPSI) who are members of KORPRI and PGRI. Although KORPRI
    • and PGRI are not trade unions as such, the protection of their members is
    • their main duty and responsibility based on the Decision of the Central Board
    • of KORPRI No. Kep. 50/K-X/PP/84 on the Organisational Structure and Working
    • Procedures. The Central Board of KORPRI and its secretariat at all regional
    • levels have established the Bureau of Employee Relations which is responsible
    • for giving guidance, developing employee relations and settling any disputes
    • among the members of KORPRI, in all the public enterprises owned by the
    • central and regional governments. KORPRI has also set up a Bureau of Legal Aid
    • (on the basis of the above-mentioned Decision of 1984) which is responsible
    • for efforts and activities relating to legal assistance needed by KORPRI's
    • members. There have been a lot of disputes settled satisfactorily by the
    • KORPRI Bureau of Employee Relations.
  14. 116. As regards the particular situation of teachers, the Government states
    • that protection by PGRI of its members' rights and interests against unfair
    • treatment by superiors is ensured through the use of the principle of mutual
    • understanding (brotherhood). This method is used because most teachers,
    • schoolmasters, school inspectors and officers of the Department of Education
    • and Culture are PGRI members. There have been cases where schoolmasters of
    • elementary schools and a Board member of PGRI in West Java had been downgraded
    • by the Head Provincial Office of the Department of Education and Culture and
    • which were settled by PGRI leading to their rehabilitation to the previous
    • ranks and positions. The PGRI Bureau of Legal Aid always takes action on such
    • cases of unfair treatment, injustice, violence, etc.
  15. 117. Since these two organisations are not workers' organisations or trade
    • unions, the Government states that it is impossible to negotiate towards or to
    • conclude collective labour agreements for KORPRI and PGRI members. Conditions
    • of work and salary of public servants are regulated by government regulations,
    • and public enterprise employees are subject to government regulations or
    • ministerial decrees, or to the legislation specifically issued for the
    • enterprises concerned. However, it points out that in the formulation of
    • company regulations for public enterprises, KORPRI representatives from the
    • respective company are also involved in the discussions. In addition, it
    • stresses that many employees of enterprises which are fully or partly owned by
    • the Government are members of trade unions. For example, the General Labour
    • Agreement signed on the one hand by plantation enterprises in Sumatra and on
    • the other hand by the All-Indonesia Workers' Federation (the principal private
    • sector trade union) in North Sumatra Province covers labour matters concerning
    • plantation enterprises owned by the Government. Moreover, according to the
    • Government, if an employee wishes to resign from membership of KORPRI and
    • become a member of a trade union, he or she is entitled to do so in those
    • enterprises fully or partly owned by the Government. For instance, the
    • workers of PT. Semen Cibinong are organised in a trade union.
  16. 118. Regarding the observation made by the Committee of Experts on the
    • Application of Conventions and Recommendations, particularly on Articles 1 and
  17. 2 of Convention No. 98, the Government states that it is applying these
    • provisions, except in relation to employees of government and state-owned
    • enterprises who have decided themselves to be members of KORPRI. It adds that
    • Article 4 of Convention No. 98 is fully respected by the Government and many
    • efforts have been made to promote and encourage collective bargaining and
    • voluntary negotiations between unions and employers on conditions of work and
    • terms of employment. One of these efforts is the publication of Ministerial
    • Decree No. 01/MEN/1985 on the procedures to conclude collective labour
    • agreements; other efforts have also been made to improve knowledge about and
    • escalate the dissemination of information in favour of the wide use of
    • collective labour agreements at enterprise level. In fact, states the
    • Government, the development of collective labour agreements at enterprise
    • level is one of the target priorities of national development in the field of
    • labour policies.
  18. 119. As regards Presidential Decree No. 123 of 1963, which the Committee
    • considers as inhibiting the right to strike of the unions, the Government
    • points out that it was issued over 25 years ago and is no longer relevant to
    • the current situation of the society. The Government indicates that the Decree
    • established the detailed lists of governmental agencies, enterprises and
    • development projects which were identified as vital at that period of time; at
    • present, however, many of those governmental agencies, enterprises and
    • development projects are no longer in operation. The number of workers
    • employed in the areas listed in that Decree only amounts to about 170,000
    • persons. In any case, states the Government, industrial relations based on the
    • spirit of brotherhood obviously do not see strikes as an urgent requirement.
  19. 120. Lastly, the Government points out that the right to strike is fully
    • guaranteed by Act No. 22 of 1957 and Act No. 14 of 1969 in which the machinery
    • for strikes is well laid down. In fact, strikes are continuously occurring
    • despite their marked decrease from time to time. According to the Government,
    • the recorded data concerning strikes over the last four years are: in 1985, 78
    • strikes; in 1986, 73 strikes; in 1987, 37 strikes; and in 1988, 36 strikes.
    • These data evidence the fact that strikes still exist, even though industrial
    • peace has significantly improved. The trend of strikes has been substantially
    • decreasing due to the practice of mutual deliberation to obtain consensus, and
    • the effective means of settling disputes has been felt to be of much help. The
    • Government holds that compulsory arbitration does not exert coercion on the
    • disputing parties to achieve the settlement, but is rather a means of finding
    • an amicable solution based on the existing regulations and practices. Under
    • the present system, the disputing parties in a bipartite situation will
    • conduct negotiations by themselves to achieve an agreement and, if no solution
    • is found after the government conciliator has assisted, the dispute can be
    • filed with regional or national committee for labour disputes settlement.

C. The Committee's conclusions

C. The Committee's conclusions
  1. 121. On the first issue, the Committee observes with regret that, despite
    • the Government's repeated reference to texts ensuring the right of every
    • citizen to join or not to join any organisation, including a trade union,
    • according to the Government's clear words, a very large section of the
    • workforce in Indonesia does not have freedom to form or join a workers'
    • organisation of its own choosing. The workers involved are government
    • employees, and the Government indicates that they can only join KORPRI, a body
    • "which cannot be considered as a workers' organisation or trade union" and
    • which is translated into English as the "Civil Servants' Corps". At the same
    • time, the Committee observes that, according to the Government, employees of
    • public enterprises owned or controlled by the State do enjoy freedom to
    • unionise.
  2. 122. The Committee notes that the texts referred to by the Government are
    • worded very generally. For example, the 1945 Constitution provides, in article
  3. 28, that "Freedom of association and assembly, of expressing thoughts and of
    • issuing writing and the like, shall be prescribed by statute"; Act No. 14 of
  4. 1969 on the Basic Provisions Respecting Manpower, in section 11, states that:
  5. "(1) All manpower shall have the right to establish and to become a member of
    • a manpower union. (2) A manpower union shall be established in a democratic
    • mannner" and in section 12: "A manpower union shall have the right to conclude
    • a labour agreement with any employer" ("employer" meaning, according to the
    • Elucidation which accompanies Act No. 14, public or private entities); and
    • Ministerial Regulation No. PER-01/MEN/1975 on the Registration of Labour
    • Organisations stipulates, in section 2, that "Workers' organisations which may
    • register at the Department of Manpower ( ... ) are those taking the form of a
    • federation of trade unions as meant in section 1c) above, which is represented
    • in at least 20 provinces and has a membership of not less than 15 trade unions
    • as meant in section 1b) above"; section 1 defines the various types of
    • organisations as:
      • a) labour organisation means an organisation voluntarily established by and
    • for workers as a trade union or federation of trade unions;
      • b) trade union means an organisation voluntarily established by and for
    • workers consisting of units within a field of industrial activity which belong
    • to a central body;
      • c) federation of trade unions means a workers' organisation the membership
    • of which consists of trade unions as meant in b) above. (It appears from the
    • most recent (1989) observation of the Committee of Experts on the Application
    • of Conventions and Recommendations made under Convention No. 98 that
    • Ministerial Regulation No. PER-01/MEN/1975 has been replaced by a 1987
    • Ministerial Regulation which apparently changes the registration procedures
    • but not the definitions.)
  6. 123. It is thus clear that there is no specific ban on unionisation of
    • public servants (and other government employees) contained in the legislative
    • texts referred to by the Government and available to the Committee. However,
    • the situation in practice, in the Government's own words, seems to be quite
    • different and it follows that there is a violation of the basic freedom of
    • association principle that all workers - without distinction whatsoever -
    • should be able to form and join organisations of their own choosing.
  7. 124. Leaving aside for the moment the question of compulsory membership of
    • KORPRI, the Committee must now examine the nature of workers' organisations
    • existing in Indonesia for government employees, whether these bodies be called
    • "corps" or "associations", in view of the Committee's previous decisions in
    • similar cases. In one case, the Committee decided that registration as a
    • society under the Societies Act of the country concerned of a civil servants'
    • association did not guarantee to the workers concerned the right to be
    • represented by a body to promote and defend their occupational interests (see
  8. 230th Report, Case No. 1189 (Kenya), paras. 679-688). In another case where a
    • government deprived a particular category of public service workers of their
    • previously enjoyed right to belong to a trade union, the Committee found that
    • the possibility for them to join "a departmental staff association" to be
    • approved by the director of the employing institution did not satisfy the
    • requirement that workers should be able to establish and join organisations of
    • their own choosing without previous authorisation (see 234th Report, Case No.
  9. 1261 (United Kingdom), paras. 343-371).
  10. 125. In the present case, the Committee notes that, according to its basic
    • statute, KORPRI has the following functions or activities:
      • a) to encourage and initiate modernisation by performing constructive
    • activities and efforts;
      • b) to motivate improvement in the performance of public services;
      • c) to advise and make recommendations to the Government concerning all
    • matters relating to the aims and main tasks of KORPRI;
      • d) to accommodate, analyse, and communicate the interests of its members in
    • accordance with the government regulations and policies;
      • e) to organise efforts and activities for the development and maintenance
    • of the material and spiritual welfare of its members and their families.
    • It also notes the Government's description of KORPRI's Bureau of Employee
    • Relations and Bureau of Legal Aid, which appear to work successfully in
    • settling disputes in general rather than labour disputes. In addition, from
    • information available to the Committee, KORPRI's activities during the
    • celebration of its 17th anniversary included hospital and orphanage visits,
    • blood donations, family planning and drug abuse lectures, sports games and
    • choir competitions (see Indonesian Observer of 24 November 1988). The
    • Committee concludes from this that KORPRI does not meet the requirements of
    • the principle that all workers should have the right to form and join
    • organisations of their own choosing to defend their occupational interests.
  11. 126. As for the other bodies for government employees which exist, for
    • example, to cover teachers, the Committee notes that the Government describes
    • the PGRI as a "professional organisation" which is "not a trade union as
    • such". From information available to the Committee it notes that the
    • objectives of the PGRI as set out in its Constitution are:
      • a) to achieve the realisation of the ideals of the 17 August 1945
    • Proclamation of Independence of the Republic of Indonesia;
      • b) to participate actively in Indonesian national development, especially
    • in the fields of education and culture by giving assistance to the setting-up
    • and management of the educational and cultural programmes in accordance with
    • the government policy;
      • c) to upgrade the attitude, quality and activities of the teaching
    • profession and to find ways and means for better welfare of its members.
    • The Government's description of the PGRI's activities also shows that this
    • association is a professional organisation which aims at developing education,
    • improving the professionalism of teachers and contributing concepts for better
    • educational development. In consequence the Committee considers that PGRI does
    • not completely fulfil the functions of a trade union aiming at promoting and
    • defending the interests of its members.
  12. 127. Turning to the monopoly situation held by KORPRI as regards all
    • government employees (by virtue of Presidential Decree No. 82 of 1971), the
    • Committee notes the further information supplied by the Government to the
    • effect that civil servants can join other associations but must, if they
    • choose employment in the public service, join KORPRI. This does not change the
    • position stated at its earlier examination of this case. In November 1988, the
    • Committee clearly pointed out that "a situation in which an individual is
    • denied any possibility of choice between different organisations by reason of
    • the fact that the legislation permits the existence of only one organisation
    • in the area in which he carries on his occupation, is incompatible with the
    • principles of freedom of association" (para. 701). The ILO supervisory bodies
    • have acknowledged that while it is generally to the advantage of workers and
    • employers to avoid proliferation of competing organisations, a monopoly
    • situation imposed by law is at variance with the principle of free choice of
    • workers' and employers' organisations (see in this connection General Survey
    • on Freedom of Association and Collective Bargaining, 1983, paras. 136-138).
  13. 128. The Committee would once again request the Government to review
    • Presidential Decree No. 82 of 1971 so as to make possible the establishment of
    • organisations to represent their occupational interests outside the
    • established structure, which would not prevent KORPRI from continuing to play
    • its welfare role as at present.
  14. 129. Secondly, as regards Article 4 of Convention No. 98 and the limited
    • negotiating role available to the workers' organisations which exist for
    • government employees and employees of public corporations, the Committee takes
    • note of the Government's further description of how terms and conditions of
    • employment are set in the public sector. The Committee can only regret that
    • this information confirms its earlier understanding that both the legislation
    • and practice are not in conformity with the Convention on this point. Since
    • such a large segment of the wage-earning population (over half according to
    • the ICFTU's allegations) is thus deprived of the right to bargain
    • collectively, the Committee urges the Government to re-examine its legislation
    • so as to recognise the right to bargain collectively to those public servants
    • who are not engaged in the administration of the State (in accordance with
    • Articles 4 and 6 of Convention No. 98). In its review, the Government should
    • take special account of the Committee's jurisprudence which has held that
    • teachers, administrative staff of national teaching services, the staff of
    • national radio and television institutes, employees of the postal and
    • telecommunications services and, more generally, employees of nationalised
    • undertakings should enjoy the right to collective bargaining enshrined in
    • Article 4 of the Convention (see Digest of Decisions, 1985, paras. 599-602 and
  15. 597).
  16. 130. On a related point, the Committee observes that in its most recent
    • observation made concerning Article 4 of the Convention, the Committee of
    • Experts continued its criticism of the level of bargaining available to
    • private sector trade unions (bargaining is available only to registered
    • federations and registration requires coverage of at least 20 provinces and 15
    • trade unions). At the same time, however, it noted the Government's assurance
    • that the legislation in question had been repealed and replaced. This
    • Committee trusts that the Government will review the bargaining situation in
    • relation to the Committee of Experts' current criticisms and that the
    • examination will include the public employees' right to negotiate as set out
    • in the above paragraph.
  17. 131. Thirdly, as regards Articles 1 and 2 of Convention No. 98 the Committee
    • notes that, contrary to the Government's statement that KORPRI members are not
    • protected by these Articles, Government Circular Letter No. Ed.1/DP/1978 of 22
    • February 1978 expressly extends protective legislation to employees of
    • government-owned or controlled companies. It also notes that the Committee of
    • Experts, in its most recent observation, again requested the Government to
    • adopt more specific legislative protection against all acts of anti-union
    • discrimination (Article 1) and against acts of interference by employers and
    • their organisations (Article 2). As it is clear from the Committee of Experts'
    • observation that legislation already exists covering several aspects of these
    • Articles which, in turn, means that relatively simple legislative additions
    • need be made, the present Committee considers that this aspect of the case
    • should be followed up by the Committee of Experts.
  18. 132. Fourthly, the Committee notes that the Government acknowledges that
    • Presidential Decree No. 123 of 1963 (containing a too broad list of
    • enterprises and services in which strikes are banned) is out of date and at
    • present only applies to about 170,000 persons. The Government should
    • accordingly have no difficulty in repealing the text, or at least in amending
    • the schedule of services so as to ensure that strikes are prohibited only in
    • essential services in the strict sense of the term, namely those whose
    • interruption would endanger the life, personal safety or health of the whole
    • or part of the population (see Digest of Decisions, para. 394, and General
    • Survey, para. 214).
  19. 133. Lastly, the Committee has carefully examined the further information
    • supplied by the Government on the impact of Act No. 22 of 1957 on the
    • incidence of strikes, and the provisions of the Act itself. It understands
    • that the system in force for the settlement of labour disputes follows either
    • of the following patterns:
  20. (1) Both or either of the parties to a dispute, if the dispute is not
    • referred to arbitration, requests in writing the aid of a conciliation officer
    • to settle the dispute; if unsuccessful the officer refers the dispute to a
    • tripartite regional settlement committee; its decision (which is binding and
    • can be enforced through the normal judicial procedure for civil judgements)
    • can be appealed by either party to the tripartite central committee for the
    • settlement of labour disputes whose decisions are binding and enforceable if
    • not reversed or suspended by the Minister of Labour on the grounds "that such
    • action is necessary for the maintenance of public order or to protect the
    • interests of the State".
  21. (2) Both parties can refer a dispute to arbitration voluntarily or on the
    • recommendation of a conciliation officer or regional settlement committee;
    • once "legalised" (approved) by the tripartite central committee for the
    • settlement of disputes, the arbitration award can be enforced in the same way
    • as a decision of the central committee and is not subject to review.
      • Fact-finding can be used as a subsidiary procedure in arbitration.
    • 134. The Committee notes in this connection that sections 13 and 14 of Act
  22. No. 14 of 1969 provide, respectively: "Exercise of the right to strike, to
    • demonstrate and to lock out shall be determined by legislative regulation" and
    • "Standards relating to the termination of employment and the settlement of
    • labour disputes shall be determined by legislative regulation". Under section
  23. 6 of Act No. 22 of 1957 on the settlement of labour disputes, if either party
    • to a dispute intends to take "measures" (lock-outs or strikes) against the
    • other party, notice (specifying, inter alia, a lack of co-operation over two
    • weeks in negotiations involving the conciliation officer) must be given to the
    • other party and to the chairman of the regional committee who must acknowledge
    • this in writing within seven days of his receipt of the notice; only when the
    • party concerned has received this written acknowledgement can the "measures"
    • be taken. In addition, according to section 23 of the Act, it shall be
    • unlawful for an employer or worker to take reprisals (or measures resembling
    • reprisals) in connection with a dispute or during its settlement.
  24. 135. In view of the above description, the Committee concludes that
    • industrial action may be taken only after bipartite consultations have failed
    • and the regional committee informed. The total time-lag involved can be as
    • long as three weeks, or even longer if bureaucratic procrastination intervenes
    • between delivery of the advice notice and its actual conveyance to the hands
    • of the chairperson of the regional committee. Any action attempting to
    • circumvent this process incurs a penalty of three months' imprisonment or a
    • fine. In addition to this, the Committee recognises that the parties face the
    • risk of having a conciliated agreement overturned by the Minister or of having
    • an unsatisfactory settlement imposed on them through compulsory arbitration
    • against which they cannot appeal.
  25. 136. In the Committee's opinion, despite the criteria written into the Act
    • concerning these two latter points, the situation is open to criticism. In the
    • first case, section 17 provides that the Minister's discretion to overturn a
    • conciliated settlement shall be taken only after consultation with the other
    • Ministers whose departments are represented on the tripartite central
    • committee for settlement of disputes, but the fact remains that he has full
    • freedom to decide in the final instance if there is a need to maintain public
    • order or protect the interests of the State. This discretion is too broad.
    • Secondly, section 19(3) does provide that in the arbitration procedure, the
    • parties themselves chose the arbitrator or members of the arbitration board,
    • but this does not temper the fact that non-appealable arbitration can be
    • forced on the parties leaving them without recourse to strike action. The
    • Committee thus recalls that it accepts limitations on recourse to strike
    • action only in the case of public servants acting in their capacity as agents
    • of the public authority, or in essential services in the strict sense of the
    • term (namely, where an interruption would endanger the life, personal safety
    • or health of the whole or part of the population) or in cases of serious
    • national crisis. While it takes due note of the fact that in the present case
    • strikes are theoretically possible in the early stages of conciliation and a
    • small number apparently take place in practice, it requests the Government to
      • re-examine the legislation in question so as to ensure that workers'
    • organisations may have recourse to the right to strike as a means of promoting
    • and protecting the interests of their members.

The Committee's recommendations

The Committee's recommendations
  1. 137. In the light of its foregoing conclusions, the Committee invites the
    • Governing Body to approve the following recommendations:
      • a) The Committee considers that the Government should review the situation
    • of government employees so as to ensure that, in practice, these workers -
    • like workers in the private sector and employees of public corporations - have
    • the right to form and join organisations of their own choosing.
      • b) In particular, the Committee again requests the Government to review
    • Presidential Decree No. 82 of 1971 so as to make it possible for public
    • employees to establish organisations to represent their occupational interests
    • outside the existing structure (KORPRI), which performs only a welfare role.
      • c) Regretting the discrepancies existing between Article 4 of Convention
    • No. 98 and the legislation and practice on collective bargaining - in
    • particular the limitations on public sector negotiations and on the level of
    • bargaining available to private sector trade unions - the Committee trusts
    • that the Government will re-examine the bargaining situation in the light of
    • the Committee of Experts' current criticisms since Article 6 of the Convention
    • permits the exclusion only of public servants engaged in the administration of
    • the State.
      • d) The Committee requests the Government to take steps to repeal or amend
    • Presidential Decree No. 123 of 1963 which, in the Government's own terms, is
    • no longer relevant to the current situation in Indonesia.
      • e) The Committee requests the Government to reconsider the compulsory
    • arbitration system set up by Act No. 22 of 1957, particularly the problem of
    • resort to strike action.
      • f) The Committee draws this case to the attention of the Committee of
    • Experts on the Application of Conventions and Recommendations.
© Copyright and permissions 1996-2024 International Labour Organization (ILO) | Privacy policy | Disclaimer