Report in which the committee requests to be kept informed of development - Report No 335, November 2004

Case No 2236 (Indonesia) - Complaint date: 25-NOV-02 - Closed

Allegations: Anti-union discrimination by the Bridgestone Tyre Indonesia Company against four union officers suspended without pay pending the outcome of dismissal procedures initiated by the company

1. 909. The Committee examined this case at its May-June 2003 meeting and presented an interim report to the Governing Body [331st Report, paras. 473-515, approved by the Governing Body at its 287th Session (June 2003)].
2. 910. The Government sent additional observations in a communication dated 28 May 2003, which was received after the first examination of the case by the Committee, and in communications dated 11 September and 4 November 2003, and 26 and 31 March, 30 June, 31 August and 2 November 2004. It should be mentioned that in its communication of 4 November 2003, the Government transmitted the views of the Employers’ Association of Indonesia (Asosiasi Pengusaha Indonesia-APINDO). The complainant organization sent additional submissions in communications dated 9 September 2003, and 1 and 18 March, 14 May and 18 August 2004. A number of communications were sent by the local union as part of the attachments to the communication of 18 March 2004, and in particular the decisions of the National Committee on Labour Disputes Settlement concerning Mr. Sarnoh H., Mr. Machmud Permana and Mr. Nazar. The letter of 14 May 2004 transmitted the decision of the National Committee on Labour Disputes Settlement concerning Mr. Setio Rahardjo and referred to a letter of 4 May 2004, which apparently transmitted the seventh set of additional information, and which the Committee has not received, although it was specifically requested.
3. 911. Indonesia has ratified the Freedom of Association and Protection of the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), as well as the Right to Organise and Collective Bargaining Convention, 1949 (No. 98).

A. Previous examination of the case

1. 912. At its meeting in May-June 2003, the Committee noted that the case concerns the initiation of dismissal procedures by the Bridgestone Tyre Indonesia Company in respect of four workers who were officers of the union recognized by the company, and who had been suspended without pay from their work pending the outcome of the dismissal procedures [see 331st Report, para. 507 of the Committee’s conclusions].
2. 913. More specifically, the following elements identified by the Committee in its conclusions should be recalled. The case stemmed from difficult negotiations on a salary increase, between the local union and the company. In this context, four union officers, representing the local union in the salary negotiations, issued a communication on 27 March 2002 telling workers to refuse requests to work overtime and to continue their work according to the normal working time. On 26 April 2002, an agreement on the salary increase was eventually reached, and the union withdrew its recommendation that workers refuse overtime. Through four decisions emanating from the chairperson of the company, dated 22 May 2002, the union officers who signed the 27 March 2002 communication were suspended from their work for infringements of the collective labour agreement; the same day, the company sought from the competent authorities the authorization to dismiss them [see 331st Report, para. 509 of the Committee’s conclusions]. It should be recalled that the four union officers concerned are Mr. Hazrial Nazar, chairperson of the local union of the Karawang factory; Mr. Julio Setio Rahardjo, chairperson of the local union of the head office in Jakarta; and Mr. Sarno H. and Mr. Machmud Permana, respectively chairperson and secretary of the local union of the Bekasi factory.
3. 914. These events resulted in two kinds of proceedings. The first one related to the procedures engaged by the company in order to obtain the authorization to dismiss the four union officers, which fell initially within the authority of the local administration. A second proceeding was initiated by the complainant organization, on behalf of the four union officers, alleging infringements of trade union rights by the company. The central administration was designated to deal with these allegations [see 331st Report, para. 510 of the Committee’s conclusions].
4. 915. The dismissal procedures evolved differently in each individual case, but no dismissal had been definitively authorized by the time of the Committee’s May-June 2003 meeting. With respect to the allegations of infringement of trade union rights, the most recent information communicated by the complainant at the time of the Committee’s May-June 2003 meeting related to the transmission of the allegations to the chairperson of the civil court [see 331st Report, para. 511 of the Committee’s conclusions].
5. 916. At its 287th Session, in light of the interim conclusions of the Committee, the Governing Body approved the following recommendations:
   • (a) The Committee requests the Government to solicit information from the employers’ organizations concerned, with a view to having at its disposal their views, as well as those of the enterprise concerned, on the questions at issue.
   • (b) In order to pronounce itself on this case in full knowledge of all the facts, the Committee requests the Government to submit its observations on the three sets of additional information submitted by the complainant and in particular on the description given therein of the dismissal procedures.
   • (c) Noting the Government’s comments on the absence of a specific procedure for the examination of allegations of anti-union discrimination, the Committee draws to the attention of the Government that it can avail itself of the technical assistance of the Office in this regard.
   • (d) The Committee requests the Government to take the necessary steps to ensure that the procedure on the allegations of anti-union discrimination reaches its conclusion without delay and in a fully impartial manner and to submit its observations thereon.
   • (e) The Committee requests the Government to: (i) take the necessary measures so as to guarantee that the procedure concerning the allegations of anti-union discrimination takes precedence over the four dismissal procedures; and (ii) examine ways of providing adequate assistance to the four workers concerned and to ensure that all the national procedures implemented in the present case are brought to a speedy conclusion.
   • (f) The Committee requests the Government to send its observations on the complainant’s contention that the suspension without pay is contrary to article 6(4) of Manpower Decree No. 150/2000.

B. The Government’s observations

1. 917. In its communications, the Government conveyed the employers’ organization’s views, and provided observations on the dismissal process and the allegations of anti-union discrimination. The Government has also indicated that the Fact-Finding and Conciliation Commission requested by the complainant organization is unnecessary, since national bodies are appropriately considering the issue.
   • Observations from the APINDO
2. 918. Following the Committee’s interim recommendations, the Government solicited information from the employers’ association of Indonesia. The observations from the APINDO, as they are stated in a letter of 22 October 2003, can be summarized as follows.
3. 919. The APINDO confirmed that the case arose in the context of basic salary negotiations. Since the parties did not reach an agreement, the matter was brought before the mediator and thus became an industrial dispute within the framework of Act No. 22/1957 on the settlement of labour disputes. While the issue was pending before the Regional Committee for Labour Disputes Settlement, the APINDO alleged that the four union officers put the company under pressure through various means such as: (1) the letter of 27 March 2002, which instructed workers to refuse to work overtime until an agreement was reached on the basic salary increase, in violation of section 10 of the collective labour agreement; (2) a strike on 3 April 2002 before the Office of the Mayor and the House of Representatives of Bekasi, in violation of section 6 of Act No. 22/1957; and (3) a threat, in a letter addressed to the President-Director of the company on 10 April 2002, to strike on 19 April 2002 if no agreement was reached on the basic salary increase, in contravention to section 67(8) of the collective labour agreement.
4. 920. The APINDO underlined that the communication of 27 March 2002 led to physical intimidation and physical violence towards workers who wanted to work overtime and, in particular, damage to their vehicles. These infringements of the collective labour agreement as well as of Act No. 22/1957 led the Bridgestone Tyre Indonesia Company to suspend the workers and initiate the dismissal procedures, in accordance with Act No. 12/1964.
5. 921. The APINDO also stated that the four union officers exerted pressure on the company and governmental institutions by requesting the interruption of the dismissal procedures, in particular by contending that the company committed anti-union discrimination contrary to section 28 of Act No. 21/2000 and by initiating a separate procedure. In this respect, the APINDO indicated that the Office of the Attorney sent the case back several times to the “Civil Servant Investigator” of the Department of Manpower and Transmigration so that the file could be substantiated with more evidence of anti-union discrimination. The APINDO stated that the four union officers were unable to submit such evidence. No criminal action was therefore initiated against the company. Finally, the APINDO indicated that Mr. Permana “sued” the President-Director of the company “to the police” of Jakarta for slander, but the action came to an end for lack of evidence.
6. 922. The APINDO concluded that the case between the workers and the Bridgestone company was a genuine labour case that had been handled by the company in an appropriate manner according to Act No. 22/1957 and Act No. 12/1964. The APINDO asserted that the Bridgestone Tyre Indonesia Company did not take any action against the local union and, in particular, did not undertake reprisals against the trade union itself. The APINDO also stated that parties to any legal process should refrain from exerting pressure or influence thereon, and expressed the view that the Government should take steps to ensure the enforcement of the law and to create a positive climate for investment.
   • Observations on the dismissal process
7. 923. In its communication dated 4 November 2003, the Government confirmed that the Regional Committee for Labour Disputes Settlement authorized the dismissals of Mr. Nazar, Mr. Permana, Mr. Sarno H. and Mr. Setio Rahardjo. The four union officers lodged an appeal with the National Committee for Labour Disputes Settlement. At the time, the Government noted that it was following the procedures and was obliged to await the decisions of the National Committee. On 26 March 2004, the Government confirmed that the National Committee had decided to refuse the union officers’ appeals and allow their dismissals. On 30 June 2004 the Government noted that the National Committee on Labour Disputes Settlement’s decisions may be appealed to the District Administrative Court under certain circumstances. In its communication dated 31 August 2004, the Government indicated that appeals had been lodged by both the workers and the company in March-April 2004 in relation to the four dismissals. The appeals are at different stages in the judicial process. Further, it is unclear whether the four union officers have received formal notification of their dismissals by the company.
8. 924. In reply to the complainant’s contention that suspension without pay was contrary to section 6(4) of Manpower Decree No. 150/2000, the Government indicated in its communication dated 11 September 2003 that such a suspension might be applied by an employer while relevant decisions of the competent judicial bodies are pending.
9. 925. With respect to the Committee’s request to the Government to provide adequate assistance to the four union officers concerned, the Government stated that such assistance was indeed provided through the normal judicial process, from the conciliation stage to the procedure before the labour committees. The Government also indicated that it had urged the employer, the workers concerned and the competent authorities to settle the case amicably and without delay.
10. 926. The Government indicated that before the National Committee’s decision, it had taken some initiative to clarify the situation and to contribute to an amicable settlement. In its 4 November 2003 communication, the Government noted that it had organized a consultative meeting on 22 October 2003 to seek information on the dismissal procedures. This meeting was attended by representatives of the Department of Manpower and Transmigration, the local governments concerned, the Office of the Attorney, representatives from the police headquarters, and by the mediators concerned. During this meeting, the labour inspectors and mediators of Bekasi and Karawang districts indicated particularly that Mr. Sarno H.’s and Mr. Permana’s suspensions had been carried out following the company’s request to the Regional Committee for Labour Disputes Settlement for their dismissal. This request was based on the alleged infringements of the following sections of the collective labour agreement:
    • – article 10, which states that the labour union must obtain prior approval from the employer before distributing printed materials or documents;
    • – article 63(1), which recognizes the employer’s right to determine sanctions;
    • – article 66(5) which describes as a serious violation any infringement of the employer’s prohibition relating to circular letters or such act causing confusion in the employer’s premises;
    • – article 67(4) and (8), which describe as a major violation any attempt to persuade an employer or colleagues to commit an act contrary to the law or decency and the prevailing laws and regulations, as well as any action of persecution, intimidation or rude insult directed at the employer or colleagues.
11. On 31 March 2004, the government noted that it had tried to set up a tripartite meeting to discuss the case, but was unable to do so as the President-Director of Bridgestone Tyre Indonesia Company was out of the country.
    • Observations on the allegations
    • of anti-union discrimination
12. 927. In its communication of 28 May 2003, the Government noted that on 7 September 2002, a report on the examination of witnesses and suspects was submitted to the police headquarters that coordinates the investigation. On 7 March 2003, the “Coordinator of Civil Servant Investigator” of the police headquarters asked the “Directorate General of Labour Inspection” of the Department of Manpower and Transmigration to complete the documentation of the case with all the necessary information. The complement of information was sent on 28 April 2003. By 1 May 2003, the report on the examination of witnesses and suspects had been sent to the High Court – Jakarta by the police headquarters.
13. 928. The Government maintained that facts should be established through an investigation. In its communication of 11 September 2003, the Government stated that, so far, it had not found any indication that there had been anti-union discrimination, but that the investigation by the Office of the Attorney was still continuing. In its 4 November 2003 communication, the Government indicated that on 12, 26 and 29 September 2003, the Ministry of Manpower and Transmigration, the Office of the Attorney and the police held consultative meetings and decided that a further examination of the case was necessary. As a result of these meetings, the Minister of Manpower and Transmigration sent a letter to the Office of the Attorney to follow the allegations.
14. 929. In response to the complainant organization’s contention that there was a difference of opinion between the Chief of the Bureau of Law and International Cooperation and the Director-General of Manpower Control on whether the employer had violated the right to organize specified in Act No. 21/2002, the Government stated in its 31 March 2004 communication that it was not aware of the difference of opinions. It also posited that the disagreement would be irrelevant, since the investigation is currently being handled by the Office of the Attorney. In its 26 March 2004 communication, the Government indicated that the anti-union discrimination proceedings were at that time “being processed to be delegated to” the Court of the First Instance for adjudication. It appears from the Government’s communication dated 31 August 2004 that the case has proceeded to court. The Government explained that at this point Mr. Kawano (the President-Director of the company against whom the allegations of infringement of freedom of association were made) had not attended court because he had since ended his term at the company and left the country. The Government explained that on 8 August 2004, the Office of the Attorney had stated that, while the file is complete, “it shall be followed up by handing over of the suspect – Mr. Kiwano Hisahi, and the evidence”. The “Director-General of Labour Inspection” will ask the “Police-Investigation Department” to “make the suspect come”.
15. 930. Regarding the Office’s offer of technical assistance in developing a specific procedure for the examination of allegations of anti-union discrimination, the Government underlined in its communication of 11 September 2003 that the absence of such a procedure at the national level was due only to the fact that the bill on industrial relations was still before the Parliament, but that several related regulations were currently being drafted nonetheless.

C. The complainant organization’s

• additional submissions
  931. 931 In its communications the complainant organization submitted information on the evolution of the dismissal procedures, the procedure on the complaint for infringement of trade union rights, and the state of industrial relations at the Bridgestone Tyre Indonesia Company before the dismissals were authorized, and responses to new allegations presented through the Government by APINDO in its 22 October 2003 letter. Finally, the complainant has commented more broadly on the follow-up to the interim recommendations of the Committee.
• Procedures regarding dismissal
• The Regional Committee decisions
  932. 932 In each of the four cases, the district mediators recommended reinstatement with a warning letter. However, in each case the Regional Committee for Labour Disputes decided to allow the dismissal. The Regional Committee’s reasoning can be summarized as follows: (1) when the workers distributed their 27 May 2002 overtime communication without management approval, they violated section 10 of the collective labour agreement; and (2) since the workers’ action was incompatible with the applicable collective labour agreement, section 28 of Act No. 21/2000 did not apply and therefore did not provide protection.
• The National Committee decisions
• Procedure concerning the dismissals of Mr. Sarno H. and
• Mr. Machmud Permana, respectively chairperson and
• secretary of the local union of the Bekasi factory:
• Decision of 4 November 2003
  933. 933 The National Committee noted that based on the Regional Committee’s report, the company had made the following representations:
  1. (1) that the union officers in question signed a 27 March 2002 letter to the workers telling them not to work overtime until a wage agreement was reached;
  2. (2) that the company denied permission to circulate the letter, but it was circulated anyway, and workers who wanted to work overtime were subjected to intimidation, including damage to their vehicles;
  3. (3) that the letter was intended to apply pressure to the company in wage negotiations;
  4. (4) that issuing the letter violated article 10 of the collective labour agreement, which requires the employer’s permission for circulating communications to union members, article 67(4) of the collective agreement against persuading fellow workers to act contrary to laws or regulations, and article 66(12), which prohibits disturbing colleagues’ work;
  5. (5) that the workers in question tried to provoke other workers with analysis of comparable wages at other companies;
  6. (6) that the workers violated the standing order on negotiation, which requires “smoothness” during salary negotiation, by agitating their colleagues;
  7. (7) that the workers violated article 67(8) of the collective agreement and the agreement between the parties to try to avoid illegal strikes by their 10 April 2002 letter giving notice of the intent to strike; and
  8. (8) that the two union officers had generally not had a cooperative attitude, having been involved in instigating three previous strikes.
  934. 934 The National Committee also noted, based on the Regional Committee’s report, that the workers had made the following representations:
  1. (1) that their actions were within their union capacity as protected by ILO Conventions Nos. 87 and 98;
  2. (2) that overtime is voluntary and cannot be prohibited or mandated;
  3. (3) that they had committed no previous infractions nor received any warning letters;
  4. (4) that the goal of the overtime letter was to save the company money and therefore give it more flexibility in wage negotiations; and
  5. (5) that investigations under Act No. 21/2000, article 28, which prohibits anti-union discrimination, were still ongoing.
  935. 935 The National Committee observed that overtime is voluntary and that the workers violated that voluntariness with their “instruction” in the 27 March 2002 letter, thereby violating in turn article 10 of the collective labour agreement. The National Committee further noted that “incidents” resulted from the letter. The National Committee noted the employer’s contention that the 10 April 2002 letter giving notice of the intent to strike was a threat. The National Committee further noted that the Director-General of Manpower Supervision and the Director-General of Industrial Relations Supervision had stated that the anti-union discrimination issue need not be decided before the dismissal action. The National Committee granted the company permission to terminate the workers with severance pay.
  936. 936 The other two cases noted similar arguments by the company and the union officers, with certain additions as described below.
• Procedure concerning the dismissal of Mr. Hazrial Nazar (chairperson of the local union of the Karawang factory): Decision of 19 November 2003
  937. 937 The company’s allegations noted by the National Committee were principally the same as those alleged in Mr. Sarno H.’s and Mr. Machmud Permana’s hearing.
  938. 938 The National Committee also noted that the worker alleged:
  1. (1) that his dismissal was based on his union membership or activity, which basis is prohibited by Indonesian law;
  2. (2) that since the overtime letter was withdrawn on 26 April 2002 the company should not rely on it in dismissing him;
  3. (3) that any intimidation of workers wanting to work overtime was entirely unrelated to the union or the union officers;
  4. (4) that in fact production difficulties were due more to mismanagement at all levels of supervision and mishandled negotiations, which caused morale to fall, than to the overtime instruction.
  939. 939 In giving permission to dismiss the worker with severance pay, the National Committee cited the threat of a strike, and concluded that the letter on overtime was a form of pressure or threat that resulted in “incidents” and violated article 10 of the collective labour agreement, and that withdrawing the letter did not eliminate the worker’s error. The National Committee also noted that the Director-General of Manpower Supervision and the Director-General of Industrial Relations Supervision had stated that the anti-union discrimination issue need not be decided before the dismissal action.
• Procedure concerning the dismissal of Mr. Julio Setio Rahardjo, (chairperson of the local union of the head office
• in Jakarta): Decision of 20 January 2004
  940. 940 The company’s allegations noted by the National Committee were principally the same as those alleged in Mr. Sarno H.’s and Mr. Machmud Permana’s hearing.
  941. 941 The National Committee noted that the worker had made the following representations: (1) that the 27 March 2002 letter was withdrawn on 26 April 2002; and (2) that the company ultimately adopted the suggested overtime policy in April 2002, thereby justifying the workers’ claims that it would save the company money.
  942. 942 The National Committee did not believe the worker’s explanation of the overtime letter, instead attributing it to pressure and threat in violation of article 10 of the collective labour agreement. It further noted that “incidents” resulted from the letter and concluded that withdrawing the letter did not erase the worker’s error. The National Committee further cited the 10 April 2002 letter giving notice of the intent to strike as a threat to the employer. It noted that the Director-General of Manpower Supervision and the Director-General of Industrial Relations Supervision had stated that the anti-union discrimination issue need not be decided before the dismissal action. The National Committee gave permission for the worker’s dismissal with severance pay.
• Procedure concerning the allegations of anti-union discrimination
  943. 943 In its additional submissions, the complainant organization has indicated that since the Committee’s previous examination of the case, the matter has gone through the following stages.
  944. 944 In its communication of 9 September 2003, the complainant organization provided the following observations. In May 2003, the “Inspection Commission of Civil Servant Investigation Officer” at the Indonesian police headquarters referred the allegations to the Office of the Attorney in Jakarta. In June 2003, the latter returned the case to the national police with some guidance on the manner in which the investigation file should be completed. On 23 June 2003, the four union officers were requested by the “Civil Servant Investigation Officer” from the Department of Manpower and Transmigration to again be interviewed about the company’s alleged violation of trade union rights. In July 2003, the case was referred back to the Office of the Attorney, although investigation continued at the national police headquarters.
  945. 945 In its communication of 1 March 2004, the complainant organization produced a letter dated 19 March 2003, in which the Acting Director-General of Manpower Supervision and Control indicated that the police and the investigating officer were still investigating the allegations. The Acting Director-General indicated that the time taken to examine the allegations was that normally required by such investigation, that there was no intention on the part of his department to unduly delay the procedure. Further comment from the Acting Director-General, set out in a letter of November 2003, was brought to the attention of the Committee on Freedom of Association by the complainant organization in the same communication. According to the letter, the civil servant conducting the investigation remained of the opinion that the Bridgestone Tyre Indonesia Company had violated article 28(a) of Act No. 21/2000, which relates to termination aimed to discourage or prevent union activity. Finally, reference was made to meetings between the local union and the Minister of Manpower and Transmigration on 8 and 16 January 2004. The Minister mentioned the investigation conducted by the “Civil Servant Investigation Officer” and indicated that he would urge the local union and the company to reach a consensus.
  946. 946 Finally, it appears from the documentation submitted that before the National Committee’s decisions granted permission to dismiss each of the four union officers, the local union and the complainant organization made further representations against the Bridgestone Tyre Indonesia Company for non-compliance with the provisions of the collective labour agreement, related to its treatment of the four union officers while their cases were pending before the National Committee. Both unions took the view that, since no dismissal had yet been authorized, the Bridgestone Tyre Indonesia Company had the obligation to pay the workers’ wages and benefits in accordance with the applicable legislation and the collective labour agreement. It appears, from a letter dated 14 January 2004, that the Director of “Manpower Norm Control” had instructed the Manpower Control Officer to carry out an investigation and to issue a warning to the company so that it would fulfil its obligations until the union officers’ dismissal was authorized. There is no indication on the file of the outcome of this particular investigation.
• Complainant organization’s response
• to allegations of illegal strike activity
  947. 947 With respect to the action staged on 3 April 2002, the complainant organization submitted the local union’s response in its letter of 1 March 2004. The local union contended that it was not a strike, but a public expression of opinion on the basis of a document entitled “Attitude statement on the wish of all workers who work at the Bridgestone Tyre Indonesia Company”. The local union underlined that the production process was undisturbed, since all participants were either on leave or had finished their shift for the day. The action took place in an orderly and secure manner with the assistance of the police. In support of the contentions, two documents were produced. The first was a letter dated 2 April 2002 from the local union to the head of the police of the Bekasi city. In this letter, referring to Act No. 9/1998 relating to freedom of opinion and expression, the local union requested the right to hold a “peace feeling show”, to be organized on 3 April 2002, in view of the failure of the negotiations concerning the salary increase. The union specified that the number of participants would amount to 400 workers of the company, apparently during their off-work hours. The “attitude statement”, intended for the mayor of Bekasi and the head of the manpower office, described in detail the union’s claims with respect to the salary increase.
  948. 948 On the other hand, the local union recognized that it had planned to stage a full strike but that, in doing so, it had every intention to abide by Act No. 22/1957. In this respect, the union submitted a copy of the collective agreement entitled “Collective agreement concerning the prevention of illegal strike”. This agreement was referred to by the complainant organization in the original complaint [see 331st Report, para. 480]. The agreement, signed on 4 January 2002, provided that the parties would endeavour to prevent strikes to the extent possible and that they recognized the right to strike as guaranteed and governed by Act No. 21/2000 concerning trade unions and Act No. 22/1957. Further, the union would be entitled to stage a strike provided it complied with section 6 of Act No. 22/1957. In the letter of 10 April 2002, a copy of which has been produced by the complainant, referring to section 6 of Act No. 22/1957, the local union informed the President-Director of the Bridgestone Tyre Indonesian Company that, in view of the failure to reach an agreement on the basic salary increase, a strike would be organized from 9 April 2002 (this is the date mentioned in the translation provided by the complainant, but it appears from the letter of 15 April referred to below that it should read 19 April) until such time as an agreement was reached. This notification was copied both to the Regional Committee for Labour Disputes and the Minister of Manpower and Transmigration. In a letter of 15 April 2002, the chairman of the Regional Committee for Labour Disputes reacted to the strike notification by underlining that the salary increase, for which the strike was organized, was under examination by the Regional Committee. In light of section 23 of Act No. 22/1957, the chairman underlined that no strike could take place while efforts to settle the dispute were under way. From the documentation presented, it seems that at that point the union decided not to pursue the strike.
• Industrial relations at the Bridgestone Tyre Indonesia Company following the suspension and dismissal of the four union officers
  949. 949 The complainant organization indicated in its 9 September 2003 communication that since the initiation of the dismissal procedures, the four workers had participated in collective bargaining with the company and that three agreements were concluded including another agreement on the basic salary increase. On the other hand, the complainant organization alleged that the four union officers were prevented from entering the company’s premises to talk with union members. The complainant organization included, in its 1 March 2004 submission, a letter from the local union to the Office of the Attorney (the date appearing on the letter is 10 December 2004) alleging anti-union discrimination in the company’s current actions, citing continued refusal to allow the union officers on the company premises – where the local union office is – and cuts in pay and complete refusal to pay wages while the employment relationship still existed.
  950. 950 As part of the attachments to the 18 March 2004 communication, the complainant organization included letters from the company to the local union, stating that the four union officers would no longer be allowed to represent the local union in negotiations, in light of the National Committee on Labour Disputes Settlement’s authorization of their dismissal. The local union was therefore requested to modify the composition of its “negotiation team”. The local union replied, in particular, that since the decisions of the National Committee on Labour Disputes Settlement could be appealed against, the four union officers were still in a position to represent the local union in negotiations. Similarly, it was alleged that they continued to be prohibited from the workplace, and written communications from them to union members required but never received company permission. In its 18 August 2004 communication, the complainant organization provided details of a meeting and a “socialization programme” during May 2004, that the dismissed workers had been prevented from attending, as well as details of the company’s refusal to negotiate with the four workers in relation to the collective labour agreement in June 2004. The complainant organization explained that the company had relied on the fact that the four workers had been dismissed and that they were prevented from entering the company’s premises.
• Follow-up of the Committee’s interim recommendations
  951. 951 In several of its communications, the complainant organization indicated that it had taken the initiative of diffusing the Committee’s report on the case to a number of institutions. On this basis, it asked the Minister of Manpower and Transmigration to ensure that the allegations of anti-union discrimination be examined before the dismissal proceedings, and to accept a Fact-Finding and Conciliation Commission review of the issue, given the absence of a specific procedure at the national level. The complainant organization asked the Regional Committee for Labour Disputes Settlement to end the dismissal proceedings. It asked the national police and the Office of the Attorney to accelerate the investigation process.
  952. 952 The complainant organization has continued to emphasize that the Government has not implemented the Committee’s recommendation that the procedure relating to the allegations of anti-union discrimination take precedence over the procedure relating to the four dismissals. In particular, the complainant organization has stressed that despite its requests, the Regional and National Committees for Labour Disputes Settlement decided to examine the dismissal cases before conclusion of the anti-union discrimination proceedings. Further, the complainant organization has expressed concern over the slowness of the procedure relating to the allegations of anti-union discrimination and the fact that either the police or the Office of the Attorney may decide to put an end to the procedure. The complainant organization has repeatedly asked the relevant authorities for quicker process.
  953. 953 The complainant organization requests that the Committee pursue its examination of the case so that the four union officers may be reinstated, and that the Office send a Fact-Finding and Conciliation Commission to establish the facts concerning the allegations of anti-union discrimination.

D. The Committee’s conclusions

1. 954. The Committee takes note of the complainant organization’s and the Government’s additional submissions. The Committee also takes note of the employer organization’s observations and the local union’s reply, transmitted respectively by the Government and the complainant organization.
2. 955. In light of the additional documents placed at its disposal, the Committee considers that the elements identified during its previous examination can usefully be recalled and completed in the following manner. Difficult salary negotiations between the Bridgestone Tyre Indonesia Company and the local union sparked off the case. Because of failure to reach an agreement on the salary increase, both parties agreed to submit the matter to the mechanisms provided for the settlement of labour disputes under Act No. 22/1957 on the settlement of labour disputes. On 22 May 2002, following a salary agreement, the company suspended the four union officers from work and initiated dismissal proceedings against them for alleged violations of Indonesian law and the collective labour agreement during negotiations.
3. 956. The company’s arguments in support of its initiation of the dismissal proceedings can be summarized as follows. The local union officers violated the collective labour agreement in certain respects, and in particular by distributing the letter of 27 March 2002, signed by them, telling workers to refuse requests to work overtime until a salary agreement was reached. The letter’s purpose was to pressure the company in salary negotiations, and that when the union officers circulated the letter on company premises, despite the company’s refusal of permission, intimidation of workers wanting to work overtime resulted. The company also alleged a strike on 3 April 2002, and that a letter dated 10 April 2002, which gave notice of an intention to strike on 19 April 2002 if no salary agreement had been reached, constituted a threat. Finally, the company argued that the four union officers did not generally have cooperative attitudes, and had been involved in instigating earlier strikes.
4. 957. The complainant organization’s response can be reflected as follows. The purpose of the 27 March 2002 letter was to save the company money, thereby allowing a higher salary increase. Any acts of intimidation that might have occurred were not at the initiative of the four union officers. Concerning the allegations of illegal strikes, the complainant organization disputes the categorization of the 3 April event as a strike, arguing that it was a public expression of opinion, which did not remove anyone from work, and which was held in an orderly and secure manner with the assistance of the police. It recognizes that the local union intended to stage a full strike on 19 April, but contends that the step it took on 10 April complied with the collective agreement and the law. It appears that the local union decided not to pursue the strike after the chairman of the Regional Committee for Labour Disputes indicated that further pursuit of the strike would be contrary to the law.
5. 958. The company’s suspension and dismissal decisions resulted in two concomitant processes. First, the company initiated dismissal proceedings pursuant to Act No. 22/1957 and Act No. 12/1964 on termination of employment in private undertakings. Second, the complainant organization lodged, on the four union officers’ behalf, a complaint of anti-union discrimination with the central administration against the company, pursuant to section 28 of Act No. 21/2000. At the same time, the four workers concerned requested their reinstatement and cancellation of the dismissal proceedings.
6. 959. The Committee notes that the National Committee on Labour Disputes Settlement found the company’s request to dismiss the four union officers justified because of their violation of the collective labour agreement. In so deciding, the National Committee observed that working overtime is voluntary, and that the union officers’ 27 March 2002 letter violated that voluntariness. The National Committee also found the 10 April 2002 letter, giving notice of the intent to strike, to constitute a threat. Finally, the National Committee noted that the Director-General of Manpower Supervision and the Director-General of Industrial Relations Supervision had stated that the dismissal action could be decided before, and independently of, the anti-union discrimination issue.
7. 960. The Committee further notes that while the dismissal procedures have resulted in four decisions from the National Committee for Labour Disputes Settlement, the anti-union discrimination procedure is only now at to the Court of the First Instance after a two-year preliminary investigation stage. The anti-union discrimination procedure was first delayed because the file was not completed to the satisfaction of the Office of the Attorney and the police, and subsequently due to the failure of the former President-Director to attend the court. The Committee notes that the “Director-General of Labour Inspection” will approach the police to take measures to ensure the attendance of the former President-Director.
8. 961. With respect to the suspension of the four union officers (with partial pay and then without pay from the end of November 2002), the Committee takes note of the Government’s reply on the compatibility of such suspension with national legislation and of its views on the assistance provided to the workers. The Committee notes the Government’s indication that before the National Committee’s decision, it took some initiative to clarify the situation and to contribute to an amicable settlement. The Committee also takes note of the consultative meeting organized by the Government on 22 October 2003 to seek information on the dismissal procedures. The Committee further notes that, in its communication of 31 March 2004, the Government observed that it tried to set up a tripartite meeting to discuss the case, but the President-Director of Bridgestone Tyre Indonesia Company was out of the country. The Committee notes finally that appeals have been lodged against the National Committee’s decisions by both the workers and the company, and that decisions in those cases have not yet been reached. The Committee requests to be kept informed of any decision reached in the appeals.
9. 962. The Committee has duly taken note of the complainant organization’s allegations that before the dismissals, when the four union officers were still able to represent the local union in collective bargaining with the company and three agreements have been concluded, the company restricted the union officers’ union activity, including prohibiting the four union officers’ access to its premises to communicate with union members.
10. 963. In light of the National Committee on Labour Disputes Settlement’s decision, the Committee wishes to recall that “[t]he principle that a worker or trade union official should not suffer prejudice by reason of his or her trade union activities does not necessarily imply that the fact that a person holds a trade union office confers immunity against dismissal irrespective of the circumstances” [see Digest of decisions and principles of the Freedom of Association Committee, 4th [Revised] edition, 1996, para. 725]. The Committee notes at the same time that the competence of the National Committee for Labour Disputes Settlement was limited to examining the request of the company to dismiss the four workers and did not extend to covering the allegations of anti-union discrimination. The Committee has duly taken note of the APINDO’s observations that the four union officers have failed to produce evidence in support of their allegations. On the other hand, the Committee notes that the most recent communication of the Government on the matter indicates that the authorities in charge of the allegations of anti-union discrimination are still in the process of adjudicating the matter.
11. 964. In light of the fact that in this case the national authorities have initiated separate processes, the Committee notes that the conclusions reached to date in the dismissal procedures are limited to that subject matter and cannot therefore lead to any conclusions on the subject of anti-union discrimination. In the Committee’s view, it is necessary to determine whether the company’s decisions to initiate dismissal proceedings were part of a broader course of anti-union action or were in fact isolated acts factually distinct from legitimate trade union issues and justified by the union officers’ actions.
12. 965. Further, the Committee recalls that in its earlier report, it stated that the outcome of the anti-union discrimination proceedings, especially if the allegations are found to be justified, “will have a substantial impact on the dismissal procedures; indeed, at one point, the local authorities were apparently of the view that they could only proceed with the dismissal procedures once the investigation into the allegations of anti-union discrimination had been concluded” [see 331st Report, para. 514, approved by the Governing Body at its 287th Session (June 2003)].
13. 966. The Committee is obliged to underline that it specifically requested that the Government take the necessary measures to guarantee that the procedure concerning the allegations of anti-union discrimination takes precedence over the dismissal procedures. The Committee notes that while the Government took some initiative in the case, such efforts did not correspond to the Committee’s request. The Committee strongly regrets that to date the Government has failed to take steps to have the anti-union discrimination proceedings concluded first. To the contrary, as noted in the decisions of the National Committee on Labour Disputes Settlement, the Director of Manpower Supervision and the Director-General of Industrial Relations Supervision have stated that the anti-union discrimination proceedings need not be decided before the dismissal action. As appeals have been lodged against the National Committee’s decisions, the Committee urges the Government to now take the necessary measures to guarantee that the anti-union discrimination proceedings take precedence over the dismissal procedures, and requests to be kept informed in this respect.
14. 967. Concerning the allegations of anti-union discrimination, to date no conclusions have been reached by the competent national authorities, including any conclusion to the effect that the allegations should be rejected for lack of evidence. Further, more than two years have elapsed since the submission of the allegations of anti-union discrimination. The following principles should therefore be recalled:
15. (1) One of the fundamental principles of freedom of association 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. The Committee has considered that the guarantee of such protection in the case of trade union officials is also necessary in order to ensure that effect is given to the fundamental principle that workers’ organizations shall have the right to elect their representatives in full freedom [see Digest, op. cit., para. 724].
16. (2) The basic regulations that exist in the national legislation prohibiting acts of anti-union discrimination are inadequate when they are not accompanied by procedures to ensure that effective protection against such acts is guaranteed [see Digest, op. cit., para. 739].
17. (3) Respect for the principles of freedom of association clearly requires that workers who consider that they have been prejudiced because of their trade union activities should have access to means of redress which are expeditious, inexpensive and fully impartial [see Digest, op. cit., para. 741].
18. (4) The law should make express provision for the possibility to appeal against acts of anti-union discrimination by employers against workers and their organizations, as well as for penalties in this respect, in order to ensure the effectiveness in practice of Article 1 of Convention No. 98 [see Digest, op. cit., para. 745].
19. 968. In the Committee’s opinion, the present case clearly illustrates that the prohibition set out in Act No. 21/2000 is insufficient; this shortcoming is accentuated when a dismissal process, governed by well-established procedures, occurs simultaneously. Indeed, while Act No. 21/2000 contains a general prohibition of any act of anti-union discrimination (section 28) accompanied by dissuasive sanctions (section 43), it does not provide any procedure by which workers can seek redress. The Committee recalls that during its first examination of the case, the Government recognized the absence of a specific procedure for the examination of allegations of anti-union discrimination. The Committee has further noted the Government’s response to the possibility of the Office’s technical assistance and its statement that the lack of a specific procedure was being remedied in a bill on industrial relations. In this respect, the Committee notes that Act No. 2/2004 concerning industrial relations dispute settlement was adopted 14 January 2004. The Act notes at the outset that it was enacted in view of, inter alia, Act No. 21/2000. In article 2(a) it states that it is meant to cover “disputes on rights”, and in 2(c) “disputes over termination of employment”. The Act outlines a generalized process of complaint, adjudication and appeal, and in the Explanatory Notes attached to the Act, it is stated that the appeals process under the Act is designed “[i]n order to guarantee a prompt, appropriate, just, and inexpensive settlement”. The Committee notes, however, that there is no specific mention of article 28 or article 43 of Act. No. 21/2000, or of anti-union discrimination in general. Therefore, the Committee requests that the Government clarify how Act No. 2/2004 fits within the principles recalled above, and in particular whether the bodies specified in Act No. 2/2004 will be competent to order the sanctions described in article 43 of Act No. 21/2000. It further requests that the Government submit any draft regulations associated with the Act to the Committee in due course.
20. 969. As far as the cases of the four union officers are concerned, the Committee urges the Government once again to take the necessary steps to ensure that the procedure on the allegations of anti-union discrimination be brought to a speedy conclusion in a fully impartial manner, and to keep it informed in this respect. It requests that the Government provide a copy of any decision reached with due reasons. Further, if the allegations are found to be justified, but the workers have already received formal notification of their dismissals, the Committee requests that the Government ensure, in cooperation with the employer concerned, that the workers concerned are reinstated or, if reinstatement is not possible, that they are paid adequate compensation. The Committee requests that the Government keep it informed of developments in this respect.
21. 970. Finally, the Committee recalls that freedom of association implies the right of the organizations themselves to pursue lawful activities for the defence of their occupational interests [see Digest, op. cit., para. 447]. The Committee therefore requests that the Government investigate the allegations of the complainant organization that, while they were allowed to act as trade union representatives in negotiations with the company, the four union officers were significantly restricted in their union activity while the employment relationship still existed. The Committee requests that the Government take, if need be, appropriate steps to ensure that the local union may freely organize its activities to defend the occupational interests of its members, and that it keep the Committee informed in this regard.

The Committee's recommendations

1. 971. In the light of its foregoing conclusions, the Committee invites the Governing Body to approve the following recommendations:
   • (a) The Committee strongly regrets that to date the Government has not taken the necessary measures to guarantee that the procedure concerning the allegation of anti-union discrimination takes precedence over the dismissal procedures. As appeals have been lodged against the National Committee’s decisions, the Committee urges the Government to now take the necessary measures to that effect. The Committee requests to be kept informed both in relation to the measures taken by the Government and any decisions reached in the appeals.
   • (b) Noting the adoption of Act No. 2/2004 concerning industrial relations dispute settlement, the Committee requests that the Government clarify to what extent this Act provides, in case of anti-union discrimination, means of redress that are expeditious, inexpensive and fully impartial, and in particular, that it clarify whether the competent bodies under this Act will have the necessary authority to apply the sanctions provided under article 43 of Act No. 21/2000.
   • (c) Noting that the allegations of anti-union discrimination submitted by the complainant organization on behalf of the four union officers have not led to any conclusion more than two years after their submission: (i) the Committee urges the Government, once again, to take the necessary steps to ensure that the procedure on the allegations of anti-union discrimination be brought to a speedy conclusion in a fully impartial manner, and to keep it informed in this respect, including by providing a copy of any decision reached; (ii) further if the allegations are found to be justified, but that the workers have received formal notification of their dismissals, the Committee requests that the Government ensure, in cooperation with the employer concerned, that the workers are reinstated or, if reinstatement is not possible, that they are paid adequate compensation; the Committee requests to be kept informed in this regard.
   • (d) Recalling that freedom of association implies the right of the organizations themselves to pursue lawful activities for the defence of their occupational interests, the Committee requests that the Government look into the allegations that the four union officers were significantly restricted in their union activity while the employment relationship still existed, and to take, if need be, appropriate steps to ensure that the local union may freely organize its activities to defend the occupational interests of its members; the Committee requests to be kept informed in this respect.