Observation (CEACR) - adopted 2022, published 111st ILC session (2023)

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

The Committee takes note of the observations of the International Trade Union Confederation (ITUC), the Indonesia Trade Union Prosperity (KSBSI) and the Confederation of Indonesian Trade Unions (KSPI) received on 6 September 2021, 1 September 2021, and 31 August 2021 respectively, and the Government’s replies thereon.

The Committee notes that several of these observations refer to the impact on the application of the convention of Law No. 11 of 2020 on Job Creation (the so-called “Omnibus Law”).The Committee notes in this regard: (i) the concern expressed by the KSPI that the law exposes certain categories of workers to greater risk of anti-union discrimination; and (ii) the concerns expressed by the ITUC that the “Omnibus law” would restrict the scope of collective bargaining agreements(CBAs), in particular for workers in micro and small enterprises (MSEs). The Committee notes in this respect the Government’s indication that the law is in line with Article 4 of the Convention, since the wages in MSEs are determined based on the agreement between the employer and workers, and the regulation of wages in this sector is intended to protect workers’ wages considering the potentially low capacity of employers in the sector to remunerate. Noting that the law is undergoing revision as a result of a decision of the Constitutional Court (25 November 2021), the Committee requests the Government to examine the concerns expressed by the trade unions before the National Tripartite Council with a view to ensuring the full conformity of the revised law with the Convention. The Committee requests the Government to provide information on the ongoing revision process and to provide a copy and a translation of the law once adopted.

Article 1 of the Convention. Adequate protection against acts of anti-union discrimination. The Committee previously requested the Government to provide statistics on the anti-union discrimination complaints received and sought information on whether these complaints were brought before the courts and on any remedies or sanctions imposed. The Committee observes that the Government limits itself to informing that there were six recorded cases of anti-union discrimination between 2019 and 2020 and that it seeks clarifications from the relevant parties of such cases. The Committee notes the indication of the KSBSI denouncing instances of anti-union discrimination and interference in multiple enterprises. The Committee requests the Government to respond to these allegations and to provide statistics on the number of complaints of anti-union discrimination and interference filed, the number of complaints brought before the courts, as well as any remedies and sanctions imposed and the average duration of proceedings under each category.

Article 2. Adequate protection against acts of interference. The Committee previously requested the Government to inform on the developments in reviewing section 122 of the Manpower Act, which allows the presence of employers in a voting procedure of trade unions, to ensure that interference by employers during the procedure is prohibited. The Committee notes with concern that the Government is satisfied with the provision and does not deem it necessary to amend it.The Government informs that the provision is intended to ensure that workers are not pressured during a vote because they are not members of a trade union. The government adds that the provision is useful in enterprises where the majority of the workforce are not union members and that it has not received complaints of interference by employers during voting. Highlighting the need to ensure adequate protection against acts of interference in practice, the Committee expects the Government to amend section 122 of the Manpower Act, so as to prohibit the presence of the employer during voting procedures. The Committee requests the Government to provide information in this respect.

Article 4. Promotion of collective bargaining.The Committee previously requested the Government to review sections 5, 14 and 24 of Law No. 2 of 2004 or the Industrial Relations Dispute Settlement Act (IRDS Act), to ensure that compulsory arbitration during collective bargaining can only be invoked under exceptional circumstances. The Committee notes the Government’s indication that it does not consider the review of the above-mentioned articles a matter of urgency since there was only one instance of a conflict of interest arising with regards to compulsory arbitration. The Committee recalls that compulsory arbitration is only acceptable (i) in essential services in the strict sense of the term; (ii) in the case of disputes in the public service involving public servants engaged in the administration of the State; (iii) when, after protracted and fruitless negotiations, it becomes obvious that the deadlock will not be broken without some initiative by the authorities; or (iv) in the event of an acute crisis (2012 General Survey on the fundamental Conventions, paragraph 247). It therefore urges the Government to take measures to amend sections 5, 14 and 24 of the IRDS Act, to ensure that the principle of free and voluntary collective bargaining is fully respected.

Recognition of organizations for the purposes of collective bargaining. The Committee previously requested the Government to provide statistics on the number of CBAs concluded at enterprise level and the coverage of workers by such agreements. The Government indicates that as of August 2021, there were 16,194 CBAs concluded across 34 provinces in the country and adds that statistical data collected annually, between 2016 (13,371 agreements) and 2021, has indicated an increase (21.1 per cent) in the number of collective agreements concluded. The Government informs that CBAs concluded post negotiations between the management and trade unions are registered. The Committee requests the Government to continue providing statistics on the number of CBAs specifying the sectors of activity concerned and the number of workers covered.

Collective bargaining at the sectoral level. The Committee previously requested the Government to provide information on the developments concerning the pilot exercise to promote collective bargaining in Bekasi, and its impact on collective bargaining at the sectoral and regional levels. The Committee notes the Government’s indication that the Directorate General of Industrial Relations and Social Security conducted several capacity building activities labelled “Training of Trainers for skills in negotiating CBAs,” targeting unions and employers, aiming to improve negotiation skills and to promote an increase in the number of CBAs. The Government states that the trainers included members of the tripartite groups from across Indonesia and that the trainings have resulted in a 21.1 per cent increase in the number of CBAs concluded between 2016 and 2021. The Government indicates that the regulations enacted would be difficult to apply or implement at the sectoral level since sectoral CBAs only pertain to general matters while specifics are governed by enterprise level CBAs. Therefore, the Government informs that its focus is to promote the creation of CBAs at the enterprise levels in order to prevent disputes in the future. The Committee considers that in practice, the issue is essentially a matter for the parties, who are in the best position to decide the most appropriate bargaining level including, if they so wish, by adopting a mixed system of framework agreements supplemented by local or enterprise level agreements (2012 General Survey on the fundamental Conventions, paragraph 222). Recalling that collective bargaining should be possible at all levels, the Committee requests the Government to take the necessary steps to also promote collective bargaining at the sectoral and regional levels and to provide information in this regard.

Export processing zones (EPZs). The Committee previously requested the Government to examine within the framework of the National Tripartite Council the concerns raised by ITUC, KSBSI and KSPI regarding the alleged denial of the rights under the Convention to workers in EPZs. The Committee notes the Government’s indication that there are no specific zones designated as EPZs but instead several zones, labelled differently, that produce export products. The Government states that during the tripartite consultations, it requested and is currently waiting for the information from trade unions regarding the complaints of anti-union discrimination and interference. The Committee requests the Government to take the necessary steps to ensure that the rights under the Convention are guaranteed for workers in all the zones, equivalent to EPZs, where export products are produced and to continue to inform it of the progress in the above-mentioned tripartite consultations. The Committee further requests the Government to provide information on the number of collective agreements in force in the referred zones, with an indication of the number of workers covered. In this regard, the Committee also requests the Government to provide information, including statistical data, on any trends observed in the coverage of the collective agreements concluded in the referred zones.