Effect given to the recommendations of the committee and the Governing Body - Report No 336, March 2005

Effect given to the recommendations of the Committee and the Governing Body

1. 68. The Committee last examined this case at its November 2004 session. The Committee recalls that, following difficult salary negotiations with the local union, the Bridgestone Tyre Indonesia Company suspended from work the four union representatives in the negotiations and initiated dismissal proceedings against them for violations of Indonesian law and the collective agreement. In fact, two concomitant processes were set in motion. First, the company initiated dismissal proceedings, which resulted in four decisions from the National Committee for Labour Disputes Settlement (hereafter the "National Committee") authorizing the dismissals, and which were appealed against by both the workers and the company. Second, the complainant organization lodged, on the four union officers' behalf, a complaint for anti-union discrimination, pursuant to section 28 of Act No. 21/2000, in respect of which no conclusions had been reached; in fact, the procedure was delayed notably because of the failure of the former president-director of the company to attend the competent court. During its last examination of the case, the Committee formulated the following recommendations [see 335th Report, para. 971]:
   • (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.
2. 69. In a communication of 6 January 2005, the Government submits the following information and observations on the Committee's recommendations set out above. With respect to the dismissal proceedings and the question of their link with the procedure concerning the alleged anti-union discrimination, the Government disagrees with the Committee's recommendation that the examination of allegations of anti-union discrimination should take precedence over the dismissal procedure. The Government states that both procedures are carried out simultaneously in line with the prevailing laws. The Government indicates also that the employer's appeal against the decisions of the National Committee resulted in two decisions dated 21 October 2004 of the National Administrative High Court, according to which the dismissals should occur without any severance pay; these decisions concern the dismissals of Messrs. Nazar and Setio. The National Committee has appealed against these decisions before the Supreme Court. The Government indicates that the appeals lodged by the workers themselves against the decisions of the National Committee are still pending before the National Administrative High Court.
3. 70. Regarding the procedure on the alleged anti-union discrimination, the Government reiterates that it must be conducted on the basis of convincing evidence assembled by the competent authorities. Efforts are still under way to have the former president-director of the company, designated by the Government as "the suspect", appear before the court since he is back in his home country. The Government states that the completion of criminal cases is hampered if the suspect is absent. The Government states that if the allegations of anti-union discrimination are found to be justified but the workers received a formal notification of their dismissals, the Government "could" make efforts to conduct an amicable negotiation between the employer and the workers. Concerning the issue of the means of redress in cases of anti-union discrimination and in particular the relevance of Act No. 2/2004 in this respect, the Government describes the different disputes governed by this Act. The Government adds, at the same time, that it guarantees freedom of association under section 28 (prohibition of anti-union discrimination) of Act No. 21/2000 concerning trade unions. Any infringement to section 28 is considered a crime calling for the application of the sanctions provided for under section 43 of Act No. 21/2000. The competent bodies to apply these sanctions are those competent to sanction any crime, which are: state courts, high courts and the Supreme Court.
4. 71. Regarding the local union's activities in the company, the Government underlines that this union is still in existence and that it functions. Indeed, the union members appointed new union officers who replaced the four former leaders.
5. 72. On a general note, the Government indicates that on 5 January 2005, the Ministry of Manpower and Transmigration once again endeavoured to resolve the case by officially inviting the management of Bridgestone Tyre Indonesia Company to discuss actions to be taken. Unfortunately, the company's management did not attend the meeting.
6. 73. A communication dated 30 December 2004 from the complainant organization, received on 13 January 2005, confirms the information transmitted by the Government. Further, from the complainant organization's communication, it seems that the National Administrative High Court dismissed the workers' appeal in a decision of 8 November 2004 and that this decision was impugned before the Supreme Court by both the four workers and the National Committee. The complainant organization underlines that the four workers have not received formal notifications of their dismissals yet.
7. 74. The Committee takes note of the information submitted by the complainant organization and the Government.
8. 75. With respect to the dismissal procedures, the Committee once again strongly regrets the Government's failure to take the necessary steps to have the procedure on the alleged anti-union discrimination take precedence over the dismissal procedures. These steps have been repeatedly requested by the Committee for the reasons set out in its two previous reports [see 331st Report, para. 514 and 335th Report, paras. 965 and 966]. The Committee must insist that the appropriate steps be taken, all the more since the procedure on the alleged anti-union discrimination has reached a stalemate while the dismissal procedures, although they have not yet resulted in final decisions and formal dismissal notifications, are following their course.
9. 76. With respect to the allegations of anti-union discrimination, the Committee recalls that they raised two questions: the general question of the means of redress in cases of anti-union discrimination and the more specific question of the Government's particular responsibility as regards the allegations pertaining to the present case. On the general question, the Committee acknowledges that sections 28 and 43 of Act No. 21/2000 cover two important aspects of the protection against anti-union discrimination: a broad prohibition and dissuasive sanctions in case of violations of this prohibition. The Committee must underline however that the existence of legislative provisions prohibiting acts of anti-union discrimination is insufficient if they are not accompanied by efficient procedures to ensure their implementation in practice [see Digest of decisions and principles of the Freedom of Association Committee, 4th edition, 1996, para. 742]. The Committee therefore requests the Government to take, as a matter of priority, the necessary measures so that workers who consider that they have been subject to anti-union discrimination, in violation of section 28 of Act No. 21/2000, can have access to means of redress which are expeditious, inexpensive and fully impartial and to keep it informed in this respect.
10. 77. With respect to the specific allegations of anti-union discrimination in the present case, while taking due note of the Government's explanation on the delay encountered in the procedure implemented in their respect, the Committee urges the Government to take the necessary measures to expedite this procedure. The Committee expects that the procedure will be completed in the near future in a fully impartial manner. If the allegations are found to be justified, but the workers have already received formal notification of their dismissals, the Committee once again 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 the Government to keep it informed of developments in this respect.
11. 78. Finally, the Committee requests the Government to provide copies of the remaining decisions of the National Administrative High Court, the decisions of the Supreme Court in respect of the dismissals as well as of any decision reached with due reasons on the allegations of anti-union discrimination.