Demande directe (CEACR) - adoptée 2020, publiée 109ème session CIT (2021)

Convention (n° 111) concernant la discrimination (emploi et profession), 1958 - Indonésie (Ratification: 1999)

Autre commentaire sur C111

Observation

Demande directe

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Articles 1 and 2 of the Convention. Legislation concerning equality and non-discrimination. In its previous comments, the Committee recalled that Law No. 39 of 1999 concerning human rights and Law No. 40 of 2008 concerning the elimination of racial and ethnic discrimination contain non-discrimination provisions that define and prohibit direct and indirect discrimination on a number of grounds covered under Article 1(1)(a) of the Convention, but sections 5 and 6 of Law No. 13 of 2003 concerning manpower (Manpower Act) do not expressly elaborate on specific grounds of discrimination nor define direct and indirect discrimination. In light of the above, the Committee requested the Government to undertake a review of the law and practice, including complaints procedures, regarding discrimination in employment and occupation based on all the grounds referred to in the national legislation and included in Article 1(1)(a) of the Convention, and to include the National Task Force on Equal Employment Opportunities as well as social partners in this process. The Committee also requested the Government to provide a copy of the revised Equal Employment Opportunity (EEO) Guidelines and to continue to provide information on the practical application of the non-discrimination provisions in the above-mentioned legislation. The Committee notes that, in its report, the Government states that it undertook a study on the implementation of the Convention involving various actors, without providing more information on the scope and findings of the study nor on the parties that were involved in the exercise. The Committee asks the Government to provide information on the scope and findings of the study conducted on the implementation of the Convention as well as on the actors that have participated in the study and any actions envisaged as follow-up to its recommendations. The Committee also asks the Government to provide a copy of such study. The Committee once again asks the Government to provide information on the practical application of the non-discrimination provisions contained in the Law No. 39 of 1999 concerning human rights and Law No. 40 of 2008 concerning the elimination of racial and ethnic discrimination and sections 5 and 6 of Law No. 13 of 2003 concerning manpower (Manpower Act), including information on any complaint concerning discrimination in employment and occupation filed with the courts and other competent authorities as well as any violations detected by the labour inspectorate.

Article 1(1)(a). Sexual harassment. Previously, the Committee requested the Government to continue to provide information on measures taken, in collaboration with social partners, to disseminate and implement the Guidelines on Sexual Harassment Prevention at the Workplace (Circular No. SE.03/MEN/IV/2011) at the national, provincial, and district/city levels, with an indication of the specific examples of company regulations and collective agreements that have incorporated the Guidelines, as well as the remedies granted to victims of sexual harassment. The Committee also requested the Government to provide examples of national regulations that have incorporated the Guidelines. The Committee notes the Government’s indication that it is considering some proposals for a draft Ministerial Regulation on Prevention of Violence and Harassment. The Committee also notes that the Government informs about a Memorandum of Understanding that the Ministry of Women’s Empowerment and Child Protection has signed with five industrial zones with the objective of increasing protection for women workers from all forms of violence and discrimination in industrial areas. The Committee further notes from the 2019 report of the National Commission on Violence against Women (NCVW) or Komnas Perempuan on 25 Years of Implementing the Beijing Platform for Action in Indonesia (Beijing+25 report) that, from 2014 to 2018, the Commission received 204 complaints concerning violence against women at the workplace. The majority of cases were about sexual violence committed by superiors or co-workers. The Committee welcomes the initiative of the Government to draft a Ministerial Regulation on Prevention of Violence and Harassment. The Committee asks the Government to provide information on any developments concerning its adoption. The Committee hopes that this regulation will explicitly cover sexual harassment in employment and occupation and refers the Government to its general observation of 2002 on the topic. It also asks the Government for information on the measures taken, in collaboration with social partners, to disseminate and implement the Guidelines on Sexual Harassment Prevention at the Workplace at the national, provincial, and district/city levels, with an indication of the specific examples of company regulations and collective agreements that have incorporated the Guidelines, as well as the remedies granted to victims of sexual harassment.

Discriminatory provisions. In its previous comments, the Committee referred to section 76(3) and (4) of the Manpower Act which requires employers who employ women during the night to provide these workers with food and drink, as well as transportation to and from the place of employment, and requested the Government to consider revising this provision to expand the benefits related to night work to male workers, with a view to ensuring equality of opportunity and treatment between men and women. The Committee notes the Government’s indication that amending the law takes time and that, in practice, section 76(3) and (4) of the Manpower Act is applied equally to men and women workers. The Committee takes due note of the information provided by the Government. The Committee notes from the information provided by the Government in its report on the Equal Remuneration Convention, 1951 (No. 100), that it will facilitate, in consultation with the social partners, an amendment of the Manpower Act. In light of the above, the Committee invites the Government to amend the Manpower Act to expand the scope of application of section 76(3) and (4) of the Manpower Act to men workers and to provide information on any future developments in this regard.

Discrimination on the ground of religion. The Committee recalls the Regulation of the Minister of Manpower No. 6 of 2016 on Religious Holiday Allowance for Employees/Workers, which, at section 1(2), recognizes religious holidays for the following religions: Islam, Catholic and Protestant Christianity, Hinduism, Buddhism and Confucianism. In its previous comment, it had recalled that local religious by-laws may have an impact on the access to and participation in employment for women and certain minorities, including in the civil service, and requested the Government to: (1) take measures to ensure that workers who belong to faiths other than those enumerated in Regulation No. 6 of 2016, are not discriminated against with regards to religious holiday allowances; (2) provide detailed information on the progress made with regard to the review of discriminatory local religious by-laws, as well as measures taken to amend or repeal discriminatory local by-laws that are contrary to the Convention; and (3) take the necessary measures to ensure that the adoption of religious by-laws does not result in direct or indirect discrimination against women or religious minority groups in employment and occupation, and to provide information in this regard. The Committee notes the information provided by the Government on the rationale and rules governing the disbursement of the religious holiday allowance. It also notes the Government’s indication that no by-laws affect minority groups’ access to and participation in employment. The Committee recalls that the NCVW, in its 2010 report, entitled “In the name of regional autonomy: The institutionalization of discrimination in Indonesia”, noted the increasing issuance of local religious by-laws which may have an impact on women’s access to and participation in employment, and on certain minorities, including in the civil service. The Committee notes that in its Beijing+25 report, the NCVW states that “discriminatory policies against women and minority groups in the name of religion and morality are still issued by the Regional Government” (page 41). The Committee notes that the Regulation of the Minister of Manpower No. 6 of 2016 officially recognizes six religions but that other religions are also practised in the country, including by minority groups. The Committee therefore once again requests the Government to: (i) to take measures to ensure that workers who belong to faiths other than those enumerated in Regulation No. 6 of 2016, are not discriminated against with regards to religious holiday allowances; (ii) to provide detailed information on the progress made with regard to the review of discriminatory local religious by-laws, as well as measures taken to amend or repeal discriminatory local by-laws that are contrary to the Convention; and (iii) take the necessary measures to ensure that the adoption of religious by-laws does not result in direct or indirect discrimination against women or religious minority groups in employment and occupation, and to provide information in this regard.

Discrimination based on political opinion. In its previous comments, the Committee referred to Government Regulation No. 98/2000 of 10 November 2000, Regulation No. 5/1999 and Regulation No. 37/2004, which provide for the dismissal of civil servants upon becoming members or leaders of political parties, and urged the Government to amend these regulations in order to ensure that workers are not discriminated against based on political opinion, and to take steps to assess how existing regulations are applied in practice with a view to ensuring that any prohibitions on civil servants becoming members or leaders of political parties are limited to the inherent requirements of the job, as strictly defined. Noting the Government’s reiterated reply that civil servants must remain neutral with regard to politics, the Committee emphasizes that under Article 1(2) of the Convention, distinctions, exclusions or preferences in respect of a particular job are not deemed to be discriminatory if they are based on the inherent requirements of such job. These measures should correspond in a concrete and objective way to the inherent requirements of a specific and definable job, function or tasks. Criteria such as political opinion may be taken into account as inherent requirements of certain posts involving special responsibilities. However, the inherent requirements of the particular job must be evaluated in the light of the actual bearing of the tasks performed. The systematic application of requirements involving one or more of the grounds of discrimination set out in the Convention is not admissible (see 2012 General Survey on the fundamental Conventions, paragraphs 828 et seq.). In light of the above, the Committee asks the Government to consider limiting the prohibition of political activities to certain positions and therefore to consider the possibility of adopting a list of jobs in the public service for which political opinion will be an inherent requirement. In the meantime, it once again asks the Government to: (i) amend Regulation Nos 5/1999, 98/2000 and 37/2004 in order to ensure that workers are not discriminated against based on political opinion; (ii) take steps to assess how existing regulations are applied in practice with a view to ensuring that any prohibitions on civil servants becoming members or leaders of political parties are limited to the inherent requirements of the job, as strictly defined; and (iii) provide information on the results of this assessment. Finally, the Committee asks the Government to indicate how many civil servants have been warned, suspended or terminated based on these three Regulations.

Article 2. National equality policy with respect to race, colour and national extraction. In its previous comments, the Committee urged the Government to provide detailed information on measures taken to implement Law No. 40 of 2008 concerning the elimination of racial and ethnic discrimination in employment and occupation, including measures taken, and results achieved, by the National Human Rights Commission to monitor the effectiveness of relevant government policies and measures taken to raise awareness of the existence of the Law. The Committee also asked the Government to undertake an assessment of the practical application of Regulation of the Ministry of Manpower and Transmigration No. PER-16/XI/2011 – which provide for a mechanism for government authorities to examine compliance with labour legislation when approving company regulations and collective labour agreements - including the number of registration applications for company regulations and collective labour agreements that have been rejected on the ground that they violate sections 5 and 6 of the Manpower Act dealing with discrimination, and to provide information in this regard. The Committee notes the Government’s indication that no cases of rejection of company regulations and collective labour agreements for violation of sections 5 and 6 of the Manpower Act have been recorded. Noting that no information is provided on the measures adopted to implement Law No. 40 of 2008 concerning the elimination of racial and ethnic discrimination in employment and occupation, the Committee again asks the Government to provide information on the implementation in practice of this Law, notably on any specific measures adopted under Chapters IV and V of the Law, including the measures taken by the National Human Rights Commission to monitor the effectiveness of relevant government policies and the measures taken to raise awareness of the existence of the Law, and the results achieved. The Committee also asks the Government to continue to provide information on the number of registration applications for company regulations and collective labour agreements that have been rejected on the ground that they violate sections 5 and 6 of the Manpower Act dealing with discrimination.

Affirmative action. Recalling that section 62(2) and (3) of the Special Autonomy Law for Papua, provide for affirmative action to support indigenous Papuans’ access to employment, including in the judiciary, the Committee requested the Government, in its previous comments to: (1) provide additional information indicating the specific results achieved through affirmative action measures for indigenous Papuans, including information regarding their recruitment in both public and private sectors such as the judiciary and local companies, as well as the number of indigenous Papuans enrolled in vocational training; and (2) provide information on any other affirmative action measures that have been adopted or promoted at provincial or national levels, as a means of achieving substantive equality in employment and occupation for all groups of the population. The Committee notes the information provided by the Government concerning the creation of two vocational training centres, namely the Sorong Industrial Vocational Training Centre in West Papua Province and the Industrial Vocational Training Centre in Papua Province, which provided training to 2,323 people. While noting the information provided by the Government, the Committee reiterates its request for information on: (i) the specific results achieved through affirmative action measures for indigenous Papuans, including statistical information regarding their recruitment in both public and private sectors such as the judiciary and local companies; and (ii) any other affirmative action measures that have been adopted or promoted at provincial or national levels, as a means of achieving substantive equality in employment and occupation for all groups of the population. The Committee also asks the Government to continue to provide information on the number of indigenous Papuans enrolled in vocational training and the type of training received.

General observation of 2018. With regard to the above issues, and in more general terms, the Committee would like to draw the Government’s attention to its general observation on discrimination based on race, colour and national extraction which was adopted in 2018. In the general observation, the Committee notes with concern that discriminatory attitudes and stereotypes based on the race, colour or national extraction of men and women workers continue to hinder their participation in education, vocational training programmes and access to a wider range of employment opportunities, resulting in persisting occupational segregation and lower remuneration received for work of equal value. Furthermore, the Committee considers that it is necessary to adopt a comprehensive and coordinated approach to tackling the obstacles and barriers faced by persons in employment and occupation because of their race, colour or national extraction, and to promote equality of opportunity and treatment for all. Such an approach should include the adoption of interlocking measures aimed at addressing gaps in education, training and skills, providing unbiased vocational guidance, recognizing and validating the qualifications obtained abroad, and valuing and recognizing traditional knowledge and skills that may be relevant both to accessing and advancing in employment and to engaging in an occupation. The Committee also recalls that, in order to be effective, these measures must include concrete steps, such as laws, policies, programmes, mechanisms and participatory processes, remedies designed to address prejudices and stereotypes and to promote mutual understanding and tolerance among all sections of the population.

The Committee draws the Government’s attention to its general observation of 2018 and requests the Government to provide information in response to the questions raised in that observation.

Enforcement. In its previous comments, the Committee requested the Government to continue to provide specific information on measures taken or envisaged to ensure that the non-discrimination provisions in the relevant legislation are implemented effectively and to: (1) provide information on any measures taken or envisaged under the National Strategic Action Plan 2013–2019 of the National Task Force on Equal Employment Opportunity (EEO), to build the capacity of the EEO Task Force on handling complaints and grievances, as well as measures to effectively address claims of discrimination in employment and occupation on prohibited grounds under Article 1(1)(a) of the Convention, including through coordination with the labour inspectorate; (2) continue to provide information on the number and nature of violations found by the labour inspectorate or other enforcement authorities, as well as decisions handed down by the courts; and (3) include information on the results from the monitoring of company regulations and collective labour agreements by bipartite and tripartite institutions and the Ministry of Manpower and Transmigration. The Committee notes the Government’s indication that measures have been taken to encourage companies to establish complaint mechanisms. The Government also informs that the labour inspectorate has not detected any case of discrimination. The Committee asks the Government to continue to provide information on the number and nature of violations found by the labour inspectorate or other enforcement authorities, as well as decisions handed down by the courts involving issues related to the application of the Convention. Also, the Committee once again asks the Government to provide information on: (i) any claims of discrimination in employment and occupation on prohibited grounds under Article 1(1)(a) of the Convention addressed by the EEO Task Force; and (ii) the results from the monitoring of company regulations and collective labour agreements by bipartite and tripartite institutions and the Ministry of Manpower and Transmigration. Please also provide information on any measures adopted to enhance the capacity of enforcement authorities, as well as of social partners, to identify, prevent and address cases of discrimination.