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- 679. By a letter dated 15 December 1987 the International Confederation of
- Free Trade Unions (ICFTU) presented allegations of violations of trade union
- rights against the Government of Indonesia. The Government supplied its
- observations on the case in a communication dated 28 May 1988.
- 680. 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. The complainant's allegations
A. The complainant's allegations
- 681. In its letter of 15 December 1987, the ICFTU recalls that on a number
- of occasions in recent years it has expressed its deep concern at the
- continuing restrictions on basic trade union rights in Indonesia, including
- increased interference in trade union activities by the authorities and
- employers, serious restrictions on collective bargaining and strike action,
- and in particular, denial of the right to organise in trade unions in the
- public service, in public undertakings and in enterprises owned fully or
- partly by the central Government or by regional or local authorities. The
- ICFTU refers in this connection to the high-level mission which it sent to
- Indonesia at the beginning of 1984, and to a detailed letter it addressed to
- the President of the Republic of Indonesia on 5 December 1984. Regrettably,
- states the ICFTU, the reply (dated 25 June 1985) did not contain any
- commitment on the part of the Government to lift the restrictions on trade
- union rights in line with internationally recognised standards on freedom of
- association. Since then the situation has not improved and it is for this
- reason that the ICFTU feels obliged to turn to the ILO's Committee on Freedom
- of Association.
- 682. The complainant first observes that on many occasions the ILO Committee
- of Experts raised questions on Indonesia's application of Convention No. 98
- and urged the Government to abandon the legislative restrictions on the right
- to organise and collective bargaining. For example, in 1979 the Committee of
- Experts considered that the protection against anti-union discrimination (in
- Act No. 21 of 1954) is extremely limited and does not satisfy the requirements
- of Convention No. 98. In 1982 and in subsequent years, with reference to Act
- No. 14 of 1969 (Basic principles concerning manpower), the Committee of
- Experts urged the Government to take specific measures to ensure that
- protection against possible acts of anti-union discrimination, both at the
- time of recruitment and during the employment relationship, is established in
- accordance with Article 1 of the Convention. In 1986 and 1987, the Committee
- of Experts reiterated its observation that the purpose of section 1(3) of Act
- No. 21 of 1954 "seems to be the protection of the employer against the
- 'dictatorial' attitude on the part of the trade union (as is stated in the
- explanatory text attached to the Act) and the exclusion of any system of trade
- union security rather than the protection of the workers against anti-union
- discrimination within the meaning of Article 1 of Convention No. 98".
- 683. The complainant also lists other issues dealt with by the Committee of
- Experts, for example: Regulation No. 49 of 1954 and Ministerial Regulation
- PER-01/MEN/1975. The complainant states that these regulations with regard to
- the registration of trade unions and collective bargaining (limited to
- federations covering at least 20 provinces and comprising 15 trade unions) are
- in conflict with obligations placed on the Government under the provisions of
- Article 4 of Convention No. 98, namely to encourage and promote collective
- bargaining.
- 684. According to the ICFTU, in addition to these restrictions there are
- serious limitations on the right to strike. In a great many sectors and
- enterprises, recourse to strike action is simply forbidden. Presidential
- Decision No. 7 of 1963 exempts scheduled industries, projects and government
- departments from the right to strike and Presidential Decision No. 123 of 1963
- lists in this respect some 27 state and private corporations, 14 government
- departments and banks, and 20 development projects.
- 685. It states that the extensiveness of the list of sectors and enterprises
- in which strike action is forbidden goes far beyond what can be considered as
- essential services in the strict sense of the term. According to the ICFTU,
- they include not only government departments (such as air and sea
- communications, railways, harbours, transport, civil aviation service, radio,
- post and telegraph), but also state corporations (such as electricity, oil and
- gas supplies, general mining, tin mining, coal, chemical industries,
- pharmaceuticals, electrical machinery, sugar, rubber and tobacco estates),
- development projects, certain private enterprises and banks. Development
- projects include the Jatiluhur Water and Hydro-electricity Project, Kalimantan
- Highway, Sriwijaya Fertilizer Plant in Palembang, specified tourist hotels,
- Sarinah Department Store, Ancol pleasure parc in Jakarta and Tuban airport in
- Bali. The banks include Bank Indonesia, Development Bank of Indonesia and the
- Indonesia State Bank. Foreign private enterprises named are Shell, Caltex,
- Goodyear Tyre and Dunlop Rubber. Moreover, a system of compulsory arbitration
- is in force for other economic sectors and private enterprises on the basis of
- Law No. 22 of 1957, which makes recourse to strike action virtually
- impossible.
- 686. The complainant states that the most serious violation of trade union
- rights concerns the denial of the right to organise in trade unions in the
- public service (including the sectors of education and health care), in public
- undertakings and in enterprises in which the State participates.
- 687. In 1970, explains the ICFTU, all staff of the civil administration in
- the Department of Internal Affairs were designated members of "Kokarmendragi"
- (functional group corps of the Internal Affairs Department), under threat of
- dismissal. This, it alleges, amounted to the Ministry's public servants
- providing organisational support for the ruling party. In 1971, similar bodies
- were established in most government departments. The prohibition on organising
- was formalised in Presidential Decree No. 82, 1971, which stipulates that
- there is to be one single organisation for public servants, known as KORPRI.
- Yet according to the ICFTU, under the relevant regulations KORPRI does not and
- cannot perform true trade union functions. KORPRI's central board is chaired
- by the Minister of Internal Affairs. In the ICFTU's view the compulsory
- membership of KORPRI by all Indonesian public servants negates the right to
- organise freely in trade unions and therefore constitutes a very serious
- violation of the principles of freedom of association. It adds that under
- Government Regulation No. 6, 1974, all state employees, at both the national
- and regional level, are public servants, as are persons employed in
- enterprises owned wholly or partly by the State. KORPRI's rules and statutes,
- confirmed by Presidential Decree No. 4, 1984, stretch the definition of public
- servants to include persons working in private companies in which the
- Government owns a share.
- 688. The complainant points out that enterprises in which the Government or
- regional authorities own part of the shares - and where workers are
- consequently barred from the right to freedom of association - are among the
- largest in Indonesia and include companies operating in the steel industry (e.
- g. Krakatau Steel), oil and natural gas and their subcontractors (e.g. Caltex)
- , tin-mining (e.g. PT TIMAH), aircraft manufacturing (e.g. PT Nusantara),
- chemicals and cement industry (e.g. Indocement), transport, import and export,
- as well as banks and agricultural estates.
- 689. Another group of workers which cannot form a trade union are
- Indonesia's some 1.5 million teachers in both public and private schools.
- According to the ICFTU, in practice the teachers' association Persuatuan Guru
- Republik Indonesia (PGRI) does not have the right to negotiate terms and
- conditions of employment. Other significant examples of denial of trade union
- rights in public sectors are the reduction, some years back, of the PKBA - a
- trade union for railway workers - and the SSPT - a trade union for postal
- workers - into no more than workers' welfare organisations, without the right
- to perform normal trade union functions, such as collective bargaining.
- 690. In conclusion, the complainant alleges that more than half of the
- employed workers in Indonesia are thus deprived of the right to establish or
- join trade unions of their own choosing and to operate these organisations
- freely.
- B. The Government's reply
- 691. In its letter of 28 May 1988, the Government states that in the free
- world today the principles and practices of any industrial relations system
- should be based upon the socio-cultural values, economic constraints and the
- industrial and commercial structure of the country concerned. In this respect,
- Indonesia is no different from any other country in that the rights of the
- individual, notably freedom of speech and similar civil liberties are all
- practised freely. However, states the Government, Indonesia has developed its
- own operational philosophy which is based upon globally acceptable principles
- adapted to meet the national ideals, cultural heritage and overall policies of
- the Republic and its indigenous population. This policy is to be found in the
- statutes of the Indonesian industrial relations system, known as the
- "Pancasila" (PIR).
- 692. The Government explains that, historically, the country first
- experienced the extremely negative results of industrial relations systems
- based on various other principles. Its experience was that when these systems
- were introduced, they resulted in the growth of political ideals which were
- not in keeping with the common good and they were found to be unable to create
- the sound consultative relationships which are essential for industrial peace
- and worker prosperity. Additionally, during this period Indonesia experienced
- spiralling conditions, unfair competition and increasing industrial disputes
- at shop-floor level which contributed to excessive and totally unacceptable
- national unrest in a broad sense.
- 693. According to the Government the PIR fully supports the principles of
- freedom of association in accordance with the 1945 Constitution and Act No. 14
- of 1969. To encourage these ideals - including the matter of collective
- agreements - the PIR stipulates that a mutual working agreement or collective
- agreement should be developed as the means of implementation for all rules and
- regulations. Since the establishment of the PIR, significant progress and
- improvements in the conditions of work generally have been brought about. Some
- of these are: (a) the establishment of 4,800 labour unions at shop-floor
- level; (b) the establishment of 4,500 mutual working agreements in various
- contexts; (c) the establishment of 2,200 bipartite bodies at shop-floor level;
- (d) the establishment of 1,500 company regulations.
- 694. The Government points out that the conditions of employment, including
- wage structures, for public sector workers are regulated by special laws and
- regulations. It is for this reason that collective agreements in the context
- of trade union mandates are not applicable. In this respect, it considers that
- the recently formed association of civil servants, known as KORPRI, is
- sufficiently effective in itself to provide a channel for negotiation and
- communication between all categories of civil servants and the Government. In
- effect, KORPRI has instituted a special office which handles all matters
- pertaining to disputes as well as other aspects between concerned workers and
- public sector employers.
- 695. The Government acknowledges that under the 1963 Presidential Decree No.
- 7, all forms of strike action are expressly forbidden. However, this Decree
- would be enforced only in respect of what are best described as the "vital
- sectors", that is to say, those agencies which support the community at large
- and where the withdrawal of such services could be detrimental to human life.
- The Government is of the view that it is necessary to urge all parties
- involved in a dispute to find ways of reaching agreement to the greatest
- extent possible, before allowing strike action to take place. The latter
- measure is considered to be the very last resort and one to be avoided if at
- all possible, hence, states the Government, the reason for these constraints.
- 696. As regards the matter of teachers in the Republic of Indonesia, the
- Government explains that there are two categories: those employed in the
- public schools whose terms of service and status are precisely those of civil
- servants; and those who work for the private schools whose salaries and terms
- of service are negotiated by the employers concerned. However, it points out
- that most private schools are managed by foundations which in principle are
- non-profit making. It stresses that if an individual wishes to join an
- association, he or she is perfectly at liberty to do so. Within such an
- organisation all members freely exercise their prerogative in respect of
- freedom of speech and similar rights. Furthermore, the Government states that
- the position of a school teacher within Indonesia enjoys a high social
- standing and status which is well recognised by the community at large and
- thereby much respected.
C. The Committee's conclusions
C. The Committee's conclusions
- 697. This case involves a general allegation of restrictions on basic 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.
- 698. As regards the first allegation which specifically concerns public
- servants, the Committee notes 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; at
- the same time, the Government points to the existence of the sole civil
- servants' association, KORPRI, as having a negotiating role between civil
- servants and their employer, the Government. The Committee takes note of the
- Government's general assertion that the principles of freedom of association
- are contained in Indonesian statutes, but regrets that it supplies no detailed
- information on the civil servants' association, KORPRI, in particular on the
- alleged influential role of the authorities, evidenced by the fact that the
- Minister of Internal Affairs is chairman of KORPRI's central board. It
- requests the Government to supply such information, particularly on the
- activities which the association undertakes to further and defend the
- interests of its members.
- 699. Likewise, 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 notes the Government's general
- assertion that freedom of association exists and that, as regards teachers in
- particular, if an individual wishes to join an association he is perfectly at
- liberty to do so. However, as for the position of public servants described in
- the above paragraph, it appears to the Committee that such associations cannot
- pursue trade union objectives. It accordingly requests the Government to
- supply further information on any associations which exist for teachers, in
- particular on the activities of the Persuatuan Guru Republik Indonesia (PGRI)
- which the complainant alleges is not allowed, in practice, to engage in
- collective bargaining.
- 700. The Committee would recall generally in connection with this first
- major allegation that the principles of freedom of association apply to
- workers without distinction whatsoever, in both the private and public
- sectors, since both categories should be able to establish organisations of
- their own choosing to further and defend the interests of their members. (See
- Digest of Decisions and Principles, paras. 213 and 214.) In particular, the
- Committee would draw the Government's attention to the fact that the denial of
- the right of workers in the public sector to set up trade unions, where this
- right is enjoyed by workers in the private sector - with the result that their
- "associations" do not enjoy the same advantages and privileges as "trade
- unions" - involves discrimination as regards government-employed workers and
- their organisations, as compared with private sector workers and their
- organisations. Such a situation gives rise to the question of compatibility of
- their distinctions with the principles of freedom of association. (See Digest,
- para. 216.)
- 701. The Committee notes that Presidential Decree No. 82 of 1971 states that
- there shall be one sole association for public servants, known as KORPRI, and
- that a series of other legislative texts extend the meaning of public servants
- to cover an extremely large segment of the working population. The Committee
- recognises that, according to the complainant, other organisations exist in
- public sectors (PKBA for railway workers, SSPT for postal employees, PGRI for
- teachers) but they do not enjoy the status of trade unions and, in practice,
- are not permitted to engage in normal trade union functions such as collective
- bargaining. As regards the important status conferred on KORPRI by the
- legislation, the Committee would recall 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. (See Digest, para.
- 226. ) The Committee would accordingly request the Government to review the
- legislative situation so as to permit public servants the right to join
- organisations of their own choosing.
- 702. As regards the allegations concerning violations of Articles 1 and 2 of
- Convention No. 98, ratified by Indonesia, the Committee notes that the
- Committee of Experts on the Application of Conventions and recommendations has
- 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. The Committee also notes that in the
- present case the Government refers, by way of general denial of the
- allegations, to the Pancasila philosophy which underpins the nation's
- industrial relations system. While noting the PIR's basis of five principles -
- belief in God, nationalism, humanism, democracy and social justice - the
- Committee reiterates 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 No. 98.
- 703. As for the alleged restrictions on collective bargaining, contrary to
- Article 4 of Convention No. 98, the Committee notes that, in addition to
- referring to the criticisms voiced by the Committee of Experts, the
- complainant claims that the workers' associations in Indonesia are not, in
- practice, able to pursue trade union activities such as collective bargaining.
- Although the Government supplies certain statistics as to the establishment of
- 4,500 collective labour agreements and 1,500 company regulations (which are
- obligatory for every undertaking employing 25 or more workers although they
- are subordinate to collective labour agreements: Ministerial Regulation No.
- PER-02/MEN/1978), the Committee notes that the sectors involved are not
- specified. Moreover, the Committee observes with concern that - despite
- KORPRI's potential involvement in negotiations - the Government clearly states
- that the conditions of employment for public sector workers are regulated by
- special laws so that collective agreements are not applicable.
- 704. In these circumstances, the Committee supports the Committee of
- Experts' comments regarding Article 4's requirements to encourage and promote
- the full development and utilisation of machinery for voluntary collective
- bargaining with a view to the regulation of employment conditions by
- collective agreements. It would also draw the Government's attention to
- Article 6 of Convention No. 98, according to which only public servants
- engaged in the administration of the State are not covered by the Convention's
- provisions.
- 705. The Committee draws this case to the attention of the Committee of
- Experts as regards Articles 1, 2 and 4 of Convention No. 98.
- 706. Lastly, as regards the alleged restrictions on the right to strike, the
- Committee notes 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. The Committee notes 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. In this respect it draws the
- Government's attention to the principle that strikes may be restricted or even
- 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. (See Digest, para. 394.) In the
- Committee's opinion, the legislation in question should be amended so as to
- permit industrial action in those services or industries which do not fall
- within this definition, such as general mining and metalworks, banking,
- teaching, agricultural activities and tobacco estates and petrol producing
- installations. (See Digest, paras. 402-407.) A restriction on strikes in
- enterprises concerned with water and electricity supply as well as air-traffic
- control have been considered acceptable by the ILO supervisory bodies in past
- cases. (See Digest, paras. 410 and 412 and Case No. 1369 (Honduras).) In the
- present case, the Committee would also request the Government to ensure the
- deletion of such state-run agencies as tourist hotels, department stores and
- the Ancol pleasure park which clearly do not provide essential services in the
- strict sense of the term.
- 707. The Committee notes that the Government makes 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. The Committee requests the Government to supply more detailed
- observations on this allegation. It would recall in the meantime its position
- on conciliation and arbitration procedures - which are not agreed to by both
- parties to the industrial disputes - namely, that the substitution, through
- legislative means, of compulsory arbitration for the right to strike as a
- means of resolving labour disputes can only be justified in respect of
- 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). (See Digest, para. 387.)
The Committee's recommendations
The Committee's recommendations
- 708. In the light of its foregoing interim conclusions, the Committee
- invites the Governing Body to approve the following 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.
