Observation (CEACR) - adopted 2015, published 105th ILC session (2016)

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

The Committee notes the observations made by the International Trade Union Confederation (ITUC) received on 1 September 2014, which relate to: (i) legislative matters already being raised by the Committee; and (ii) acts of anti-union discrimination and interference against union members and officials. The Committee requests the Government to provide its comments with respect to point (ii). The Committee further notes the Government’s comments on the 2011 observations of the ITUC.

Articles 1 and 2 of the Convention. Protection against acts of anti-union discrimination and employer interference. The Committee previously requested the Government to take steps to amend the legislation to ensure comprehensive protection against anti-union discrimination, providing for swift recourse to mechanisms that may impose sufficiently dissuasive sanctions against such acts. It also requested the Government to provide practical information in this regard and a copy of Decree No. 03 of 1984 of the Minister of Manpower. The Committee notes that the Government indicates that there are several anti-union discrimination complaints that have been reported to the Indonesian National Police as the main investigator, and that the labour inspector is always involved in the procedure by conducting inspections. In the absence of information concerning the review of the Trade Union Act previously announced by the Government, the Committee requests the Government to: (i) take steps, in the near future, and in full consultation with the social partners concerned, to amend the legislation to ensure comprehensive protection against any acts of anti-union discrimination and employer interference, providing for swift recourse to mechanisms that may impose sufficiently dissuasive sanctions against such acts; (ii) specify, separately, the number of complaints of anti-union discrimination and interference filed with (a) the police, (b) the labour inspectorate and (c) the courts, as well as the steps taken to investigate these complaints, the remedies and sanctions imposed, as well as the average duration of proceedings under each category; and (iii) supply 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 this respect, including as regards 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 in an enterprise shall have the right to represent the workers in collective bargaining. The Committee notes that the Government once again indicates that the employer and the Government are merely present during the vote as witnesses and that their presence will not affect the voting. Highlighting the need to ensure adequate protection against acts of interference in practice, the Committee reiterates its previous comments and requests the Government to take steps to amend section 122 of the Manpower Act, so as to suppress the presence of the employer during voting procedures, as well as to discontinue the presence of the Government except if the unions concerned request otherwise.

Article 4. Promotion of collective bargaining. In its previous comments, the Committee had requested the Government to take measures to amend sections 5, 14 and 24 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 states that Act No. 2 of 2004 provides for industrial relations dispute settlement through arbitration, conciliation or mediation (in case of failure of conciliation or mediation, any of the parties may bring the case to the industrial court). The Committee observes that the ability of one of the parties, as per sections 5, 14 and 24 of Act No. 2 of 2004, to refer the dispute to the Court if settlement cannot be achieved through conciliation or mediation, constitutes compulsory arbitration. The Committee emphasizes that compulsory arbitration at the initiative of one party to the dispute cannot be considered to promote voluntary collective bargaining. The Committee further recalls that compulsory arbitration is only acceptable in relation to public servants engaged in the administration of the State (Article 6 of the Convention), essential services in the strict sense of the term and acute national crises. The Committee therefore requests the Government to take measures to amend sections 5, 14 and 24 of Act No. 2 of 2004 so as to ensure the respect for these principles.

Recognition of organizations for the purposes of collective bargaining. The Committee previously commented on section 119(1) and (2) of the Manpower Act, according to which, 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 workers in the enterprise. The Committee also notes that, if the relevant union does not obtain 50 per cent support in such a vote, it may once again put forward its request to engage in collective bargaining after a period of six months. In the absence of relevant information from the Government, the Committee recalls that, while it is acceptable that the union which represents the majority or a high percentage of workers in a bargaining unit should enjoy preferential or exclusive bargaining rights, the Committee considers that in cases where no union meets these conditions, the minority trade union or unions should at least be able to conclude a collective agreement on behalf of its/their own members. The Committee requests the Government to guarantee the respect of this principle and to take the necessary measures to amend section 119(3) of the Manpower Act accordingly so as to ensure that this provision promotes collective bargaining in the sense of Article 4 of the Convention.

Time limit for collective bargaining. The Committee previously noted the Government’s indication that collective agreements must be concluded within 30 days after the beginning of negotiations, and requested the Government to ensure the application of the principles concerning the free and voluntary exercise of collective bargaining. The Committee notes that, according to sections 3 and 4 of Act No. 2 of 2004, if bargaining does not result in an agreement within 30 days, one or both parties may initiate the dispute settlement procedure. Mindful of the fact that the dispute settlement procedure under Act No. 2 of 2004 might culminate in compulsory arbitration (see comments above), the Committee considers that a negotiation period of 30 days may be too short, in particular in the case of negotiations of a branch collective agreement or of a first collective agreement at the enterprise level in complex corporate structures. In the absence of any information from the Government, the Committee recalls that the parties should be able to continue the negotiation of a collective agreement, if they so wish, even after the 30-day delay has expired, and that, in the event that a collective agreement already exists, the parties should be able to start the negotiations of a future agreement before the end of the current one. The Committee requests the Government to guarantee the respect of the above principles concerning the free and voluntary exercise of collective bargaining and to provide information on the measures taken or contemplated to this end.

Federations and confederations. The Committee previously noted the Government’s indication that there has been no report of federations or confederations of trade unions having signed collective agreements, and requested it to ensure that such information is publicly available and to continue to provide information concerning collective agreements signed by federations or confederations. The Committee notes that the Government states that it still coordinates with the respective parties and will provide up-to-date information in the future. The Committee requests the Government to supply information concerning the number and type of current collective agreements concluded by federations or confederations of trade unions, and to ensure that such information is publicly available.

Export processing zones (EPZs). In its previous observations, the Committee had repeatedly 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. Noting the Government’s indication that it coordinates with the respective parties and will provide up-to-date information in the future, the Committee deeply regrets that the Government has still not provided the requested information. The Committee once again requests the Government to provide data concerning the number of collective agreements in EPZs and workers covered by them, as well as on the number of complaints of anti-union discrimination and employer interference in EPZs and the relevant investigation and remediation measures.

The Committee recalls that the availability of information concerning collective agreements in force is a means of promoting collective bargaining.

[The Government is asked to reply in detail to the present comments in 2016.]