Individual Case (CAS) - Discussion: 1991, Publication: 78th ILC session (1991)

The Government has communicated the following information:

1. Protection against acts of anti-union discrimination

In relation to Case No. 1431, the Government recalls that Act No. 14 of 1969, on the Basic Provisions Respecting Manpower states that all workers shall have the right to establish and become members of trade unions. This Act stipulates that trade unions shall be established in a democratic manner. The Government guarantees that there is no restriction for any worker to become a member of a trade union.

2. Protection of workers' organisations against acts of interference by employers

The Minister of Manpower decree No. 120/1988 on the Code of Conduct for the Prevention and the Settlement of Labour Disputes, states that employers shall respect the right of their workers to become members of trade unions, and the right of their workers to establish trade unions. It also states that employers are not allowed to prevent their workers from becoming members of trade unions, either during the time of recruitment or during their employment.

3. Restrictions on collective bargaining

In order to cope with new developments, the Minister of Manpower Regulation No. 05/1987 is now being reviewed. Improvements have also been made in public companies and some have been able to conclude collective agreements. The structure of these companies has been reorganised, so that the boards have been elected by workers through democratic elections. These companies are: PT. Kaltim Prime Coal in East Kalimantan, PT. Multi Harapry Infama in East Kalimantan, PT. Tamilo Harma in East Kalimantan, PT. Allied Indo Coal in South Kalimantan, and Trectonin Indonesia in West Sumatra.

In addition a Government representative referred to his Government's written communication and highlighted several points. Firstly, that Act No. 14 of 1969 on the Basic Provisions respecting Manpower gave workers the right to establish and join trade unions and stipulated that union should be established in a democratic manner. Secondly, on protection of workers' organisations against acts of interference by employers, he stated that Ministerial Decree No. 120 of 1988 adopting a Code of Conduct for the prevention and settlement of labour disputes provided that employers should respect the workers' right to become union members and to form unions, and prohibited employers from preventing workers becoming members either at the time of recruitment or during employment. Thirdly, on restrictions on collective bargaining, he repeated that Ministerial Regulation No. 05 of 1987 was now being renewed. There had also been improvements in public companies, some of which had been able to conclude collective agreements; the structure of such companies had been reorganised so that the workers could democratically elect the board members.

The Workers' members noted that the Committee of Experts had been making comments since 1979 on the same points found in this year's report: absence of sufficiently specific legislative provisions to protect workers against acts of anti-union discrimination; the same for protection of their organisations; and lastly, restrictions on free collective bargaining. The Government sent reports and supplied additional information, but the concrete situation has hardly changed at all. The Experts considered that the measures taken under the Ministerial Decree of 1988 were not sufficient to provide adequate protection and the same applied for the second point, where they requested information on the practical application of the texts in question. On the third point, the Experts were clear; they regretted that the new text did not subtantially change the system for registering unions. When one read the written communication referred to by the Government representative, one was obliged to note that no real replies to these three questions were given. The Workers' members wanted to know the legal status of a code of conduct since the Government's report referred to one. They considered that it was absolutely necessary to insist that the Government did not simply continue to recall the same things in its reports, but that it take measures to reply to the comments and to bring the legislation into full conformity with the requirements of the Convention.

The Workers' member of Indonesia described the history of trade unions in Indonesia, pointing out that by 1959 there had been approximately 100 national trade unions registered with the Ministry of Labour, 150 local unions and 7 federations. But he doubted that this system was of real benefit to the workers because in the following decade only a further 200 industrial unions were formed and only 7 collective labour agreements signed. In addition, the activities of the unions had been influenced more by political interests than the principles of a real trade union movement. On 20 February 1973, every prominent trade union leader in Indonesia finally agreed to sign a declaration of unity of Indonesian workers and merged their organisations into one single body, the All-Indonesia Federation of Trade Unions (FBSI). It held its first national congress in 1981, deciding to further unite all Indonesian workers and to increase the number of national level unions. Its second national conference in 1985 showed that delegates were able to democratically choose and elect a new leadership; other decisions of this congress included (a) changing the term "labourer" to "worker" in accordance with the 1945 Constitution; (b) changing the structure of the organisation of unions from industrial to territorial districts; (c) changing the name from FBSI to SPSI, the All-Indonesia Workers' Union. Those leaders not re-elected formed the Joint Secretariat of Industrial Unions who, at the third national congress in 1990, were invited to take part in certain working groups. However, it became clear that this body had no support at its base and appeared to be more influenced by the personal interests of its leaders. As for Ministerial Regulation No. 05 of 1987 which repealed the 1975 Ministerial Regulation, he pointed out that this regulation had been submitted by the trade union for discussion in the National Tripartite Forum. He hoped that it would be changed so that the SPSI could fully carry out its activities on behalf of the workers.

The Workers' member of the Netherlands noted that the Committee of Experts had recorded divergencies between the Indonesian legislation and the Convention in 1979, 1982, 1983, 1986, 1987 and this year. Each time the Government had been requested to bring the legislation into line with the Convention, but nothing had happened. He regretted that the Committee of Experts' report, in mentioning Case No. 1431 persented by the International Confederation of Free Trade Unions (ICFTU) to the Committee on Freedom of Association, had not used a lot of the information about the lack of free collective bargaining in Indonesia contained therein; in his view that would have been very helpful to this Committee. The conclusions in that case, namely that civil servents and workers in government-owned or partially government-owned enterprises did not have the right to organise in trade unions and therefore did not have the right to negotiate their working conditions. The workers in such companies had to belong to a special organisation the "KORPRI" which could not carry out trade union functions and which was under the leadership of government ministers from the respective sectors. The Governing Body of the ILO had expressly asked the Government to grant this category of workers the right to bargain collectively as members of trade unions, functioning freely and independently of government parties and other institutions in line with the ILO's principles. He asked the Government representative whether the Government would, in view of these conclusions and recommendations, grant to workers in public sector state-owned companies the right to organise in normal trade unions and whether it would promote collective bargaining in the public sector.

On the subject of free and independent unions, the speaker referred to the dual function given officialy to the Indonesian Army: in addition to the normal duties undertaken by armies in other countries, Indonesian army officers had to be active in mass organisations such as unions. A significant number of retired army officers held leading positions in the trade union movement at the local and regional level; the very level where collective bargaining was most relevant. He believed that there was no country in the world where unions enjoyed such significant support from the army in their day-to-day work. He was worried about the situation and felt that military involvement in trade unions was not conducive to their free and democratic day-to-day functioning. He wanted to hear from the Government representative on this point as well.

Referring to the numerical criteria mentioned by the Committee of Experts since its report in 1979, the speaker noted that since September 1990 there existed a new, small trade union centrecalled "Solidarity". He was not surprised by the Indonesian Workers' member's reaction to the emergence of this new union and believed he was entitled to his own views. But the Government's reaction was a different matter: the new union had requested recognition in order to be able to carry out union work, in particular collective bargaining, but the Government had apparently refused it. Leaders of the new union had, from time to time, been arrested and questioned. At the very opening of this Session of the Conference, its General-Secretary had just been released, after having been abducted and kept in detention for a few days. That was the incident behind the statement made by the Workers' Vice-Chairman at the opening session referring to the presidency of this Session of the Conference. These cases of arrest and intimidation might not be immediately relevant to this Convention, but the speaker referred to a Jakarta Post report of some days ago referring to a high-ranking government official advising local authorities and companies not to provide facilities to this new union. Therefore he asked the Government representative whether the Government did indeed object to unions other than the SPSI, in particular as regarded collective bargaining.

The Workers' member of Japan agreed with the previous speaker as he had good reasons to doubt whether not only the right to bargain collectively, but also the right to organise, was guaranteed in Indonesia. The Government representative had tried to assure the present Committee that the law on registration provided guarantees for all workers, however there was other legislation which placed major limits on the free exercise of the right to organise in trade unions. This affected all public servants and all employees of public enterprises. In Indonesia, public enterprises were widely defined to include all companies in which the State had a holding of 5 per cent or more. The workers there were obliged to join the officially created body called "KORPRI", which, he understood, was headed by a cabinet minister and could not engage in basic trade union activities. Despite the Government's written reply, he felt that the Government did interfere in the affairs of the unions. His impression was confirmed by the 1990 survey of violations of trade union rights just published by the ICFTU which reported that the Government exerted a strong influence over the only legally recognised trade union centre, the SPSI. The Minister of Labour was a member of the SPSI consultative council and retired military officers occupied important leadership positions in its regional and national structures. In view of all this, the speaker suggested that the Government representative should supply further information so that the Committee of Experts would be able to examine the case not only under Convention No. 98, but also in the light of the principles of Convention No. 87.

The Employers' members noted that although the Experts had been commenting on this case for some time, it was only in 1986 that the present Committee had dealt with it. Unfortunately, there was no extensive information available, but according to the Experts the Government had recognised its obligations and had adopted regulations; the only question was whether they were adequate. In three particular areas there were doubts about this. Firstly, the Convention called for "adequate" protection and the Experts asked whether there were any further provisions, particularly protecting workers at the time of recruitment and during the employment relationship against anti-union discrimination. The Government needed to look again at the questions and reply in a further report. As for the protection of workers' organisations against interference by employers, the Committee of Experts requested copies of two possibly relevant texts and it was part of the normal practice to satisfy such request promptly. On the requirement that unions be registered before being authorised to engage in collective bargaining, the Employers considered that the available information was not sufficient. They entirely agreed with the Experts' request that the Government re-examine its legislation on this point. They stressed that the Government should provide sufficient information so that the Committee of Experts could make an appraisal of the actual state of affairs both as regarded the law and practice.

The Workers' members of Pakistan, recognising the problems facing the large countries in Asia such as Indonesia having big labour forces, appreciated the statement made by the Indonesian Workers' member. But, at the same time, he recalled that Indonesia had ratified Convention No. 98 and that the Committee of Experts had specifically asked for information on three areas: protection against anti-union discrimination, against interference by employers and registrating for collective bargaining purposes. He believed that the contradictions existing between the law and practice and the Convention should be rectified as had been urged by the Workers' members.

Another Government representative repeated that Indonesian law was sufficient in protecting the right to organise and the right to bargain collectively in line with the Convention. Restrictions on the right to strike in so-called essential areas had been withdrawn and he believed that there was very good protection against anti-union discrimination. Employers were not allowed to restrict the existence of unions at the plant level. In reply to the intervention of the Workers' member of the Netherlands, he pointed out that in every country in the world, after military officers had retired they became normal citizens and, if they became employers, they could join employers' associations and if they were workers they were also free to organise themselves. They had the same right as other workers to be elected as officers of a trade union. Referring to the Employers' doubts about government interference in unions, he believed that there was no restriction when workers wished to strike; but if the workers' action became excessive and aimed at destroying the enterprise, then something had to be done to protect the interests of the public, of the enterprises and of society as a whole. Therefore the action of law enforcement bodies should not be called a kind of interference, but should be seen as a means of protecting the workers, as well as the interests of the employers and the public. On the question of registrating, he repeated that certain requirements were necessary for recognition at national level. But organisations which were not yet able to fulfil these requirements could still exist even without national recognition. According to the speaker, there were a number of such organisations existing without registration and carrying out activities. Thus he stressed that registration was necessary only if the organisation wanted national recognition. Lastly, he pointed out that "KORPRI" could function as a trade union if it wished to, that is, if that was the consensus of the public servants employed in the enterprises or organisations involved. His Government had already reported that a number of public sector state-owned enterprises had trade unions functioning which had concluded collective agreements.

The Workers' member of the Netherlands asked the following question: if a trade union federation is not registered by the Government at the national level, it is possible for unions set up at the enterprise level belonging to that federation to negotiate collectively with the management in that enterprise?

The Workers' member of Greece asked the Government representative to clarify his statement concerning the possibility of the election of an employer as a head of a trade union. If it is the case that an employer can influence workers to vote for him then such a situation should be described as deplorable in the conclusions.

The Workers' member of France, with reference to the statement of the Government representative concerning the negative consequences of the right to strike for the national economy, asked for clarifications of the Government's conception of the right to strike and its exercise.

The Workers' member of Senegal asked the Government representative about the retirement age for the military in his country.

The Employers' member of Indonesia, with regard to the question of protection of the trade unions against acts of interference by employers, pointed out that there are regulations issued by the Government which do not allow the employers to interfere with the trade union activities and make it very difficult to dismiss a worker since he is entitled to compensation in case of dismissal.

The Government representative, answering the question put by the Workers' member of the Netherland, pointed out that there is no restriction whatsoever at the management level and gave an example of ASTRA group which is a big conglomeration of enterprise. Answering the question put by the Workers' member of Greece, he explained that there could be no confusion about the employers and workers in practice, but in every collective agreement they specify the different categories. In case of the absence of a trade union and a collective agreement, the national law requires each enterprise to have a company regulation in which a question of who belongs to the staff or to the management level and who belongs to the workers' level should be specified. As regards the right to strike, the speaker stated that the strike should be notified to the Government and then could be recognised as a legal strike, whereas a strike without any notification is illegal. Answering the question on the retirement age for the military, the Government representative pointed out that it is normally 42 years of age for the lower level, 48 years for the medium level (which could be prolonged up to 50 years) and 55 years of age for the officers.