Rapport où le comité demande à être informé de l’évolution de la situation - Rapport No. 383, Octobre 2017

Cas no 3124 (Indonésie) - Date de la plainte: 27-FÉVR.-15 - Clos

Allegations: The complainant organization alleges dismissal of trade union leaders, restriction on the exercise of the right to strike by using police and paramilitary force on striking workers, dismissal of trade union members and other workers for having participated in a strike and the employer’s interference in trade union affairs by intimidating workers to change their trade union affiliation in favour of a union supported by the management

1. 394. The Committee last examined this case at its October 2016 meeting, when it presented an interim report to the Governing Body [see 380th Report, paras 562–589, approved by the Governing Body at its 328th Session].
2. 395. The Government provided its observations in a communication dated 6 March 2017.
3. 396. The complainant provided additional information in a communication dated 12 June 2017.
4. 397. Indonesia has ratified the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), and the Right to Organise and Collective Bargaining Convention, 1949 (No. 98).

A. Previous examination of the case

1. 398. At its October 2016 meeting, the Committee made the following recommendations [see 380th Report, para. 589]:
   • (a) Welcoming the Government’s detailed response, the Committee requests it to take the necessary measures to conduct an independent investigation into the allegations of the use of police and other forces on striking workers. It requests the Government to inform it of the outcome of the investigation, including any measures taken as a result, and trusts that the Government will take the necessary measures to ensure that police, security and other forces are not used for strike-breaking purposes and that any intervention during strikes or industrial actions is strictly limited to situations where law and order are seriously threatened, in line with the principles set out in its conclusions.
   • (b) In light of the abovementioned principles and the large-scale termination of striking workers, the Committee requests the Government to take the necessary measures to initiate an independent inquiry to address the allegations of anti-union termination of 1,300 workers and to determine the real motives behind these measures and, should it be found that they were terminated for legitimate trade union activities, take the necessary measures to ensure that the workers are fully compensated, if indeed reinstatement is not possible due to the company’s closure. The Committee requests the Government to keep it informed of any developments in this regard.
   • (c) The Committee requests the Government to provide a copy of the reports of the investigation into the alleged acts of intimidation of Kokom Komalawati. The Committee urges the Government to provide its observations on the specific allegations of interference in trade union affairs by forcing workers to change their trade union affiliation in favour of a trade union supported by management. The Committee expects that the Government will take the necessary measures to ensure that any acts of employer interference in trade union affairs are properly identified and remedied and, where appropriate, that sufficiently dissuasive sanctions are imposed so that such acts do not reoccur in the future.
   • (d) Bearing in mind the complex nature of the case and the multitude of interconnected allegations (deficiency in wage payment, dismissal of trade union leaders following the establishment of a union, restriction on the exercise of the right to strike, termination of employment after having participated in a strike and interference in trade union affairs), the Committee trusts that the investigations to be conducted will look at these incidents as a whole with a view to properly reflecting the circumstances of this case.

B. The Government’s reply

1. 399. In its communications dated 6 March and 20 September 2017, the Government states that implementation of the right to organize and express opinions in public, together with the right to strike, are protected by the Government as long as they are in accordance with the procedures and mechanisms provided by national legislation, uphold the rights and dignity of other parties and do not disturb public security and order. The Government indicates that it had conducted an investigation into the allegations of the use of force on striking workers in July 2012 by requesting information from the police and the management of the garment group – parent company of the garment enterprise where the strike took place. The results of the investigation show that the July 2012 collective action did not comply with the applicable procedures and mechanisms as the workers had neither submitted prior notice of their actions to the police, as stipulated in Act No. 9 of 1998 relative to freedom of expression in public, nor to the Manpower Office of the city of Tangerang in Banten Province, as stipulated in Act No. 13 of 2003 concerning manpower. The Government further states that the Head of Indonesian Police Regulation No. 1 of 2005 stipulates that police may be present in the area of industrial disputes, strikes, demonstrations or lockouts if demanded by the department responsible for manpower, worker or labour union, employers or employers’ organization or by judgement of the police, and its placement is intended to provide protection and assistance in maintaining public security and order and allow workers and employers to implement their right to strike and protect or close the company legally, orderly and peacefully. In line with this Regulation, the police was present at the strike following a verbal report on its occurrence by the company management and its presence was necessary given that the striking workers were accompanied by a community organization (Badan Pembina Potensi Keluarga Besar Banten – BPPKB), carried out acts of intimidation and violence towards workers who did not participate in the strike and damaged company property. In such a state of anarchy and disturbance to public order, the police took measures to disperse the striking workers in line with the above Regulation and, at the same time, urged pregnant women and elderly workers to avoid the site of action but this warning was not heeded. The Government thus considers that, based on the investigation results, the police was present at the strike site for the sole purpose of maintaining public security and order and the alleged fainting incident and minor injuries to workers were the result of jostling among strike participants.
2. 400. The Government further states that the dismissals of company workers were solely motivated by the difficult financial situation of the company, as confirmed by the audits from 2009–11 and the company’s closure in 2014. In line with the Industrial Relations Dispute Settlement Act No. 2 of 2004, which provides for dispute resolution through bipartite negotiations, mediation, conciliation, arbitration and the Industrial Relations Court, various efforts were made by the Government to resolve the case. In January 2017, the Government facilitated a meeting between the management of the parent company and the workers, represented by Kokom Komalawati and representatives from the complainant, in order to discuss the settlement for the dismissed workers whose rights have not yet been paid. The management of the parent company consented to paying the dismissed workers and both parties agreed to resolve the issue through deliberation facilitated by the Manpower Regional Office in Tangerang. To this effect, two meetings took place on 23 and 30 January 2017, during which it was agreed that negotiations relative to the unresolved issues of company workers would be conducted once a week, both sides would respect the other’s rights and if any issues remained unresolved after two months, they would be returned to the Ministry of Manpower and its Regional Office in Tangerang. The negotiations also permitted to verify and clarify data as to the number of workers concerned (339 according to the parent company and 346 according to the workers’ representatives) and organize further meetings in February and March 2017, some facilitated by the Government and others at which the Department of Labour was not requested to participate. The Government informs, however, that the negotiations did not result in any agreement between the parties, which could in particular not agree on the amount of lay-off compensation. In April and May 2017, the Government thus offered both parties to immediately file their cases to the local Manpower Office in Tangerang for mediation, but the complainant rejected the offer and the employer did not reply. To date, the Government is awaiting for one or both parties to file their cases to the local Manpower Office pursuant to the Industrial Relations Dispute Settlement Act.
3. 401. Concerning the allegations of intimidation, the Government reiterates that the right to organize is protected by national regulations, particularly section 28 of Act No. 21 of 2000 on trade union/workers’ union, which stipulates that everyone is prohibited from preventing or forcing a worker to form or not to form a trade union, become or not become a union official or member and carry out trade union activities, by means of dismissal, suspension, demotion, transfer, reduction of wages, intimidation and campaigning against the establishment of trade unions. The breach of this section is criminally sanctioned by one to five years of imprisonment and a fine of 100,000,000 to 500,000,000 Indonesian rupiah (IDR), in line with section 43 of the same Act. The Government further informs that, based on a police investigation into the alleged violations of the right to organize of Ms Komalawati, the police issued a Warrant Termination of the Investigation due to insufficient evidence. With regard to the alleged acts of interference in trade union affairs by forcing workers to join a management-supported trade union, the management of the parent company stated that the local company was neither involved in the formation of the Independent Workers’ Union (SPI) nor did it oblige workers to become its members. Furthermore, the Government indicates that these issues have not yet been submitted or reported to it and, therefore, suggests that the complainant should submit evidence on this charge to the police or the Ministry of Labour and Manpower in Tangerang, who are authorized to resolve national labour issues. The Government adds that, according to the parent company, some workers also complained about acts of intimidation conducted by the company trade union (PTP SBGTS-GSBI PT PDK), as well as obstruction to join the SPI and to work during the union-declared strike.
4. 402. In conclusion, the Government indicates that the Ministry of Labour, the Manpower Office of Tangerang City and the Tangerang City Police Department conducted an investigation into the issues raised in this case (lack of payment of wages, dismissal of union leaders after formation of a trade union, limitation on the right to strike, termination of employment after participation in strike and interference in trade union affairs) and concluded that these issues did not constitute a violation of Conventions Nos 87 and 98, as the allegations submitted by the complainant were found not to have violated Act No. 21 of 2000 on trade union/workers’ union or Convention No. 87. The Government adds that employment issues started when the company suffered financial losses, which resulted in the suspension of the minimum wage and dismissal of workers, including trade union leaders, which in turn led to a strike. However, according to the Government, both the suspension of the minimum wages and the dismissals were done in accordance with the applicable procedures, including through negotiations with workers’ representatives, as demonstrated by minutes of a bipartite meeting (attached), and were implemented prior to the registration of the workers’ organization. The Government indicates that while employment issues have not yet been fully resolved, it has taken steps to settle these issues through deliberation between the management of the parent company and the workers’ representatives.
5. 403. Concerning the complainant’s additional information, the Government affirms that every citizen is free to express their opinion in line with Act No. 9 of 1998 on Freedom of Expression in Public, which stipulates that, with a few exceptions, rallies can be conducted in a public place, and Head of National Police Regulation No. 7 of 2012 on Implementation Procedures of Service, Security and Handling of Cases of Expressing Opinion in Public Area, which regulates the location and time of rallies. The Government explains, however, that the rallies conducted by the complainant on Sundays cause inconvenience and interrupt activities of the local population, such as a car-free day. In addition, every citizen has the right to rest peacefully and comfortably on holidays and weekly rest days and the complainant’s demonstrations thus violate article 28 J of the Indonesian Constitution, which states that every citizen should respect the human rights of others in the orderly life of society, nation and State. Since there is no regulation at the national level to ensure convenience, public order, protection of people and respect for the rights and freedoms of others during rallies, local governments can set technical implementation rules to this effect. The Municipal Regulation No. 2 of 2017 thus stipulates that rallies can only be conducted during work days and not during weekly rest days.
6. 404. With regard to the presence of police during one of the complainant’s rallies in April 2017, the Government indicates that its role was to maintain public order and security given the massive assembly. The Government further states that a police investigation was conducted into the allegations of violence by a member of the Tangerang City Police, including through examination of witnesses (representatives of the police, Ms Komalawati and another trade union representative) and found that although there was no slapping, the police officer covered the mouth of one demonstrator because she was emotionally expressing her speech and spitting, which was degrading to the police dignity. This action was nevertheless considered to be in breach of the police code of conduct and in June 2017, upon completion of the investigation and trial, the police officer was issued a disciplinary punishment in the form of written reprimand.

C. Additional information from the complainant

1. 405. In its communication dated 12 June 2017, the complainant states that the Central Executive Board of the Federation of Indonesian Trade Unions (DPP GSBI) and the company trade union met with the Government on 19 December 2016 but that the Government has not taken any serious action to implement the Committee’s recommendations, with the exception of encouraging the parent company and the workers to negotiate in order to settle the rights of workers that have been unilaterally dismissed. In this regard, the complainant indicates that on 12 January 2017, a first meeting was held between the workers’ representatives, the management of the parent company, the Labour Department of Tangerang City and representatives from the Department for Industrial Relations and Social Security of the Ministry of Manpower, who agreed that, under the direct coordination of the Head of the Labour Department of Tangerang City, the case would return to the negotiation process starting from 23 January 2017 for a period of two months. The complainant further states that despite five meetings held during this period, the negotiations led to a deadlock with no agreement, the parent company kept the same attitude as in the past five years and the Government did neither seek a solution nor take any active role in resolving the case. For instance, during the third meeting of the parties, representatives of the Labour Department of Tangerang City were only present to open the meeting after which the negotiation process was left to the workers’ representatives and the parent company, and representatives of the Ministry of Manpower only took notes without being actively involved. Since the two-month period did not result in any agreement, on 11 April 2017, the Ministry of Manpower offered to settle the case through mediation and the Industrial Relations Court, in line with the Industrial Relations Dispute Settlement Act, but the complainant and the leaders of the company union rejected this proposal, considering that the period agreed for the legal process had to be followed, and instead urged the Government to comply with the Committee’s previous recommendations.
2. 406. The complainant further states that in January 2017, the Mayor of Tangerang City issued a Municipal Regulation No. 2 of 2017 on the implementation of public opening in Tangerang City, section 12(2)(b) of which prohibits the community to rally, campaign or parade on Saturdays and Sundays. The complainant believes that this Regulation is contrary to Act No. 9 of 1998 on freedom of public opinion and was implemented to prevent picket lines and peaceful campaigns that have been conducted by company workers every Sunday morning for the past year in order to gather public support for the workers’ struggle and urge the local government to resolve the five-year-long case. During one such demonstration on 9 April 2017, a Sunday morning, the Secretary-General of the DPP GSBI was slapped by a Tangerang City police officer, which shows that not only did the Government not solve the pending issues of the case, but it also allowed violence to be once again perpetrated against workers of the parent company.

D. The Committee’s conclusions

1. 407. The Committee notes that the present case concerns allegations of dismissal of trade union leaders, restriction on the right to strike by using police and paramilitary force on striking workers, dismissal of trade union members and other workers for having participated in a strike and interference in trade union affairs by intimidating workers to change their trade union affiliation in favour of a union supported by the management.
2. 408. With regard to the allegations of the use of police and other forces on striking workers in July 2012 (recommendation (a)), the Committee observes from the information provided that the complainant and the Government have opposing views on a number of elements, including the affiliation of the paramilitary groups present at the strike site and the source of violence and injury to the workers. While the complainant states in its initial complaint that the striking workers were confronted with a violent intervention by the security, police and paramilitary groups who used force and tear gas against them, causing fainting or injury to 34 workers, the Government indicates that information provided by the police and the parent company shows on the one hand, that the workers’ strike was not in compliance with the applicable procedures, as no prior notice had been issued to the competent authorities and, on the other hand, that the police was present at the strike site following a request made by the company management, in line with the applicable regulations, for the sole purpose of maintaining public security and order, considering that the striking workers were accompanied by a community organization and carried out acts of violence, intimidation and destruction of company property. The Government also maintains that any minor injury to workers was caused by the jostling among the strike participants and not by the police. In these circumstances, the Committee must emphasize once again that while the principles of freedom of association do not protect abuses consisting of criminal acts while exercising the right to strike [see Digest of decisions and principles of the Freedom of Association Committee, fifth (revised) edition, 2006, para. 667], freedom of association can only be exercised in conditions in which fundamental rights, and in particular those relating to human life and personal safety, are fully respected and guaranteed [see Digest, op. cit., para. 43].
3. 409. The Committee further notes that, as indicated by the Government, an investigation had been conducted into the allegations of the use of force against the striking workers, but understands that this process simply consisted of requesting information from the parent company and the police, who are, according to the complainant, the main actors behind the alleged infringements. The Committee considers that such an investigation is at risk of not producing the most impartial and objective results and recalls that in the event of assaults on the physical or moral integrity of individuals, the Committee has considered that an independent judicial inquiry should be instituted immediately with a view to fully clarifying the facts, determining responsibility, punishing those responsible and preventing the repetition of such acts [see Digest, op. cit., para. 50]. Further observing the complainant’s indication that, in April 2017, the police once again used force against a worker during a peaceful demonstration, the Committee notes the Government’s statement that an investigation had been conducted into these allegations and although it was found that no violence had been used, the police officer was nevertheless reprimanded for not having performed his duty in line with the police code of conduct.
4. 410. Further noting the complainant’s concern that the adoption of the new Municipal Regulation No. 2 of 2017 purposefully restricts the company workers’ peaceful campaigns aimed at expressing their concerns as to the long-standing nature of this case, the Committee observes that according to the Government, the Sunday rallies conducted by the complainant cause inconvenience and interrupt activities of the local population, as every citizen has the right to rest peacefully and comfortably on weekly rest days, and local governments are competent to regulate this aspect of freedom to express opinions in public. Recalling in this regard that workers should enjoy the right to peaceful demonstration to defend their occupational interests and that a time restriction placed by legislation on the right to demonstrate is not justified and may render that right inoperative in practice [see Digest, op. cit., paras 133 and 149], the Committee considers that a Ministerial Regulation which totally restricts demonstrations throughout the weekends, as alleged in this case, would seriously impede the exercise of this right. The Committee requests the Government to provide a copy of the Municipal Regulation and expects it to take the necessary measures to ensure that all workers may exercise their right to peaceful demonstration in line with the principles of freedom of association.
5. 411. Concerning the allegations of large-scale dismissals (recommendation (b)), the Committee recalls that the complainant alleged two different sets of dismissals – one occurring in February and March 2012, at the time of registration of the company trade union, and mostly concerning trade union leaders, and another one following the July 2012 strike, in which around 1,300 workers were affected. The Committee notes the Government’s indication that the only ground for dismissal of company workers was the difficult financial situation of the company, the dismissals were done in accordance with the applicable procedures and were implemented prior to the registration of the workers’ organization. The Committee observes that this information appears to refer to the first set of dismissals, as both the Government and the employer representatives have previously informed that those dismissals were conducted in the framework of staff reduction programmes between February and July 2012, while claiming that dismissals following the July 2012 strike were justified by the workers’ prolonged absence from work and refusal to obey the company’s appeal to work [see 380th Report, paras 572–573 and 577–578].
6. 412. The Committee further notes in this regard the information provided by both the Government and the complainant that in January 2017, the Government facilitated a meeting between the parent company and the workers’ representatives, who agreed to resolve the issue of the dismissed workers whose rights have not yet been paid through negotiation during a period of two months. The Committee welcomes these recent efforts but observes that both the Government and the complainant indicate that after five meetings between the parties, the negotiations led to a deadlock with no agreement. While further noting the complainant’s allegations that the Government did not take any active role in resolving the case, the Committee also observes, however, that the Government facilitated a number of meetings and bipartite negotiations and that when the Ministry of Manpower, after expiration of the two-month period, offered to settle the case through mediation and the Industrial Relations Court, this proposal was refused by the complainant and not acknowledged by the employer and, to date, neither of the parties filed their case to the local Manpower Office for resolution. In these circumstances, the Committee cannot but regret that more than five years after the events, the dispute remains unresolved and hundreds of workers still await compensation. The Committee further observes that it is unclear from the information provided to which set of dismissals the negotiations refer (dismissals having occurred around the time of registration of the company trade union or dismissals following the July 2012 strike, or both), but considers that in either case, negotiations can, presupposing good faith of the parties, significantly contribute to an amicable resolution of the dispute. The Committee invites the parties to present a formal request for mediation in relation to the issue of dismissed workers to the local Manpower Office.
7. 413. Further observing that the Government failed to provide any information on whether an independent inquiry had been conducted into these allegations of large-scale termination of workers following the July 2012 strike and recalling that dismissals of strikers on a large scale involve serious risk of abuse and place freedom of association in grave jeopardy, the Committee requests the Government once again to take the necessary measures to initiate an independent inquiry to address these allegations and to determine the real motives behind these measures and, should it be found that the workers were terminated for legitimate trade union activities, take the necessary measures to ensure that they are fully compensated. The Committee firmly hopes that the Government will be able to report progress in this regard without further delay.
8. 414. As regards the allegations of interference in trade union affairs and intimidation of workers (recommendation (c)), the Committee observes from the information and documents provided by the Government that the investigation into the alleged infringements of trade union rights of Ms Kolamawati was closed due to insufficient evidence, that the parent company contests the allegations that the local company interfered in trade union affairs or intimidated workers to become members of the newly created management-supported trade union, that the latter allegations have not yet been reported to the competent authorities and that, according to the parent company, acts of intimidation were also perpetrated by the company trade union against workers who did not participate in the union-declared strike or wanted to join the new trade union. Expressing concern at the allegations of interference and intimidation from both sides and in view of the Government’s indication that some of the allegations have not yet been reported to it, the Committee invites the complainant to provide to the competent national authorities detailed information concerning the allegations of interference in trade union affairs by forcing workers to change their trade union affiliation in favour of a management-supported trade union, so that they can conduct an investigation and determine whether these allegations are founded, and if so, to take the necessary measures to remedy and sanction these acts. The Committee requests the Government to keep it informed of any developments in this regard.
9. 415. Finally, the Committee notes the Government’s general indication that the Ministry of Labour, the Manpower Office of Tangerang City and the Tangerang City Police Department conducted investigations into the issues raised in this case (deficiency in wage payment, dismissal of trade union leaders following the establishment of a union, restriction on the exercise of the right to strike, termination of employment following participation in a strike and interference in trade union affairs) and concluded that these employment issues did not constitute a violation of national legislation or Conventions Nos 87 and 98 and that, although the employment issues have not yet been fully resolved, the Government has taken steps to settle them through deliberation between the parent company and the workers’ representatives. While taking due note of this indication and welcoming the Government’s initiative to encourage negotiations among the parties and to obtain information on the relevant issues from the police and the parent company, the Committee considers that in view of the complex nature of the case, the large numbers of workers concerned, and the multitude and serious nature of interconnected allegations, some of which were not contested either by the Government or the employers’ representatives, such measures would be insufficient in the absence of an independent investigation aimed at establishing the facts. Therefore, the Committee requests the Government to take the necessary measures to ensure that all pending matters are dealt with without further delay and in line with the Committee’s recommendations and to report in detail on any measures taken or envisaged in this regard.

The Committee’s recommendations

1. 416. In light of its foregoing conclusions, the Committee invites the Governing Body to approve the following recommendations:
   • (a) The Committee requests the Government to provide a copy of the Municipal Regulation No. 2 of 2017 and expects it to take the necessary measures to ensure that all workers may exercise their right to peaceful demonstration in line with the principles of freedom of association.
   • (b) The Committee requests the Government once again to take the necessary measures to initiate an independent inquiry to address the allegations of anti union termination of hundreds of workers following the July 2012 strike and to determine the real motives behind these measures and, should it be found that the workers were terminated for legitimate trade union activities, take the necessary measures to ensure that they are fully compensated. The Committee firmly hopes that the Government will be able to report progress in this regard without further delay. The Committee also invites the parties to present a formal request for mediation in relation to the issue of dismissed workers to the local Manpower Office.
   • (c) The Committee invites the complainant to provide to the competent national authorities detailed information concerning the allegations of interference in trade union affairs by forcing workers to change their trade union affiliation in favour of a management-supported trade union, so that they can conduct an investigation and determine whether these allegations are founded, and if so, to take the necessary measures to remedy and sanction these acts. The Committee requests the Government to keep it informed of any developments in this regard.
   • (d) Bearing in mind the complex nature of the case, the large numbers of workers concerned, and the multitude and serious nature of interconnected allegations, some of which were not contested either by the Government or the employers’ representatives, the Committee requests the Government to take the necessary measures to ensure that all pending matters are dealt with without further delay and in line with the Committee’s recommendations and to report in detail on any measures taken or envisaged in this regard.