Observation (CEACR) - adoptée 1995, publiée 82ème session CIT (1995)

The Committee takes note of the written and oral information supplied to the Conference Committee in June 1994 and the discussion which took place there. It further notes the conclusions of the Committee on Freedom of Association in Case No. 1756 (see 295th Report, paragraphs 398 to 423, approved by the Governing Body at its 261st Session, November 1994).

The Committee recalls that its comments have for a number of years concerned the following points:

-- the absence of specific legislative provisions accompanied by sufficiently effective and dissuasive sanctions to protect workers against acts of anti-union discrimination at the time of recruitment or during the employment relationship (Article 1 of the Convention);

-- the absence of sufficiently detailed legislative provisions to protect workers' organizations against acts of interference by employers or their organizations (Article 2);

-- the restriction on free collective bargaining whereby only federations covering at least 20 provinces and grouping a large number of trade unions may conclude collective agreements; and provisions preventing workers from engaging voluntarily in collective bargaining and concluding collective labour agreements through freely chosen representatives (Article 4).

1. Protection against acts of anti-union discrimination. The Committee notes from the conclusions of the Committee on Freedom of Association in Case No. 1756 that the measures taken by the Government to settle cases of worker dismissals did not guarantee adequate protection to workers against acts of anti-union discrimination since the legislation allows an employer to invoke "lack of harmony in the working relationship" to justify the dismissal of workers who are actually only exercising their fundamental right to organize. It recalls the recommendations of the direct contacts mission that steps should be taken, in law and fact, to guarantee workers effective protection against acts of anti-union discrimination by employers, including the adoption of provisions to remedy evidentiary difficulties and the strengthening of penalties and enforcement provisions in this regard. The Committee notes from the Government's statement in the Conference Committee that Ministerial Manpower Decree No. 438 of 1992 explained that employers shall not take any unfavourable action towards workers on the basis of trade union membership, whether as an official or a member. The Committee notes from the conclusions of the direct contacts mission that this Decree, along with a number of other regulations or guidelines providing for the protection of workers against acts of anti-union discrimination should be embodied in an Act so as to ensure more adequate protection under the law. Noting the Government's statement at the Conference Committee that it agrees with the proposal for strengthening sanctions and intends to amend the labour legislation, with the International Labour Office's assistance, the Committee urges it to take the necessary measures to provide expressly in the legislation protection for workers against acts of anti-union discrimination (including dismissal, as well as other forms of prejudicial action, such as transfer, demotion, etc.), accompanied by sufficiently effective and dissuasive sanctions.

2. Protection of workers' organizations against acts of interference by employers. In its previous comments, the Committee noted the Government's statement that the legislation, Ministerial Decision No. 438/1992, and the Code of Conduct eliminated the possibility of interference by employers. The Committee requested the Government to provide information on how the provisions of the Ministerial Decision No. 438 and the Code of Conduct were applied in practice. As no reply has yet been received from the Government in this regard, the Committee once again requests the Government to indicate in its next report the manner in which these texts are applied in practice so as to ensure the protection of workers' organizations from acts of interference by the employer and to provide information on the measures taken or envisaged to strengthen the legislation in this regard.

3. Restrictions on collective bargaining. The Committee notes the adoption of Minister of Manpower Decree No. 01/1994 concerning Trade Unions at Company Level (SPTP) which, according to the Government, gives a wide opportunity to workers at the plant level to establish an organization which will be able to bargain and negotiate a collective labour agreement, with no obligation to join any particular organization. The Committee notes that this regulation provides that the labour union can be established in companies which employ 25 or more workers, and/or where a labour union has not been formed (section 4(1)) and where more that 50 per cent of all workers have given their approval for the establishment (section 13). In this regard, it draws the Government's attention to paragraph 241 of its 1994 General Survey on Freedom of Association and Collective Bargaining in which it observes that, where the law stipulates that a trade union must receive the support of 50 per cent of the members of a bargaining unit to be recognized as a bargaining agent, a majority union failing to secure this absolute majority is denied the possibility of bargaining. In such a system the Committee considers that if no union covers more than 50 per cent of the workers, collective bargaining rights should be granted to all unions in the unit, at least on behalf of their own members.

The Committee further notes that Decree No. 01/1994 makes reference to the requirements of Regulation No. 3/1993 which provides that, to be registered, a trade union must have at least 100 units at plant level, 25 organizations at the district level and five organizations at the provincial level; alternatively, it must have at least 10,000 members throughout Indonesia. While these requirements are lower than those contained in the previous Regulation (No. 5/1987), they remain so stringent as to constitute a major obstacle to collective bargaining since very few trade unions can obtain their registration in these circumstances. The Government is therefore requested to indicate the measures taken or envisaged to amend Regulation No. 3 so that the requirements for registration are not excessive and so that trade unions can be recognized at the workplace for the purposes of collective bargaining according to objective and pre-established criteria which will not effectively result in impediments to free collective bargaining.

4. The Committee expresses the firm hope that the Government will take the necessary measures in the very near future to ensure in its legislation the protection of the provisions of the Convention and recalls that the Office remains ready and willing to provide technical assistance in this regard.