Rapport intérimaire - Rapport No. 380, Octobre 2016

1. 562. The complaint is contained in a communication from the Federation of Independent Trade Unions (GSBI) dated 27 February 2015.
2. 563. The Government sent its observations in a communication dated 4 March 2016.
3. 564. 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. The complainant’s allegations

1. 565. In its communication dated 27 February 2015, the GSBI alleges dismissal by the company PT Panarub Dwi Karya of trade union leaders, restriction on the right to strike by using police and paramilitary forces 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. The complainant indicates that the allegations concern the Textile and Footwear Union on Company level of PT Panarub Dwi Karya (Pimpinan Tingkat Perusahaan Serikat Buruh Garmen Tekstil dan Sepatu – PTP SBGTS-GSBI PT PDK), which is affiliated with the complainant, produces footwear in Tangerang City, Province of Banten, and in 2012 employed 2,650 workers, 90 per cent of whom were women.
2. 566. In particular, the complainant states that the PTP SBGTS-GSBI PT PDK was established on 24 February 2012 and registered on 14 March 2012 with 610 members. Shortly after its registration, the management of the company laid off nine union leaders: the workers were individually called by the management and told that in order to improve the company’s efficiency they would be laid off, even though in line with section 164(3) of the Act of Manpower No. 13 of 2003 and Constitutional Ruling No. 19/PUU-IX/2011, one of the requirements for a company to lay off a worker on grounds of rationalization (efficiency) is that the company should be in temporary or definitive shutdown, which, according to the complainant, was not the case in the present situation. Out of the nine union leaders, five accepted the lay-off and four rejected it: Kokom Komalawati (Chairperson of the union), Harta, Jamal Fikri and Dedi Sutomo. Harta and Dedi Sutomo accepted the lay-off after mediation with the Regional Office of Manpower and Transmigration Department in Tangerang City and Jamal Fikri accepted it in August 2013. Kokom Komalawati has not accepted the lay-off and her case is currently at the Supreme Court.
3. 567. The complainant indicates that on 15 February 2012, the Director of Production at the company, who is also a former ad hoc judge at the Supreme Court, called Kokom Komalawati and offered to transfer her to a better division, which, according to the complainant, was an attempt to influence her to reject the PTP SBGTS-GSBI PT PDK. The Director of Production told the worker that he did not approve the establishment of the trade union because of GSBI’s politics, added that he would only allow the All-Indonesia Workers’ Union (SPSI) and the National Labour Union (SPN) at the factory and also mentioned a plan to establish a different trade union. The complainant informs that on 23 February 2012, Kokom Komalawati was asked to join the SPN contrary to section 28 of Act No. 21 of 2000 on Trade Union/Workers’ Union, which stipulates:
   • Everybody is prohibited from preventing or forcing a worker/labourer from forming or not forming a trade union/labour union, becoming a union official or not becoming a union official, becoming a union member or not becoming a union member and/or carrying out or not carrying out trade/labour union activities by:
     • (a) terminating his employment, temporarily suspending his employment, demoting him, or transferring him to another post, another division or another place in order to discourage or prevent him from carrying out union activities or make such activities virtually impossible;
     • (b) not paying or reducing the amount of the worker’s/labourer’s wage;
     • (c) intimidating him or subjecting him to any other forms of intimidation;
     • (d) campaigning against the establishment of trade unions/labour unions.
4. 568. The complainant further states that there was a wage deficiency in the factory for the period of January to March 2012 and the working conditions had worsened since early 2012 when the company imposed a new production system – one piece flow – to boost production by gradually reducing the number of labourers. In one case, the number of labourers in the sewing line was 48 for a target of 140 pairs of footwear per hour, it was then reduced to 40 and later to 34 workers who had to attain an identical production target. The complainant states that this production system put more pressure on the workers, tortured and terrified them, as it reduced the workers’ time to leave their line; any worker who tried to take a break for prayer, to drink or go to the toilet would increase the workload. The production target was also accompanied by tighter discipline enforced by foremen and supervisors; workers considered to be working too slow were punished with yelling, swearing or dismissal and those who missed work for sickness or other reasons were made to stand in front of the line for an hour. In addition, every worker was forced to attend 10- to 20-minute meetings before and after work, which required them to get to work earlier than usual but was not remunerated. On the proposal of the representatives of the union, management agreed to negotiate on the worsening working conditions and the wage deficiency but then unilaterally cancelled the agreed time of negotiation by a text message. This unilateral cancellation of negotiations by management combined with the deteriorating working conditions triggered a strike from 12 to 23 July 2012 in which around 2,000 factory workers participated, demanding the payment of wage deficiency and the improvement of working conditions.
5. 569. During the strike, the workers, who were mostly women, some of whom were pregnant, were confronted by security and police officers and paramilitary groups from the Board of Trustees of the Family Potential (Badan Pembina Potensi Keluarga Besar – (BPPKB) Banten, Banser (Barisan Serbaguna), Pabuaran People and from Surabaya. The complainant alleges that these forces tried to stop the strike by force and sprayed tear gas on the striking workers, pushed, hit and pelted them with blunt objects, as a consequence of which two women fainted and another 32 workers were injured. On 19 July 2012, when the worker representatives were in a hearing with the brand’s representatives in Jakarta, 75 workers who had joined the strike were herded into the yard by management and forced to stand in the sun and make a statement not to participate in any protest action and to resign from both their membership in the trade union and the company. Furthermore, on the fifth day of the strike, management did not allow workers to work, announced that the strike was illegal and forcefully declared 1,300 striking workers to have resigned although it later re-employed some of them as new workers. On 20 July 2012, the management established the Independent Workers’ Union (Serikat Pekerja Independent (SPI)) and every worker still employed in the factory was obliged to become its member and resign from his or her membership in the SBGTS-GSBI PT PDK or the SPN. The complainant indicates that the management hired paramilitary rangers to make workers join the new union and to force them to hand over their original membership cards. In October 2012, the SBGTS-GSBI PT PDK held a protest demanding the reinstatement of the 1,300 workers but it was dismissed by other workers, suspected to be mobilized by management, who used blunt weapons like wood and rocks, injuring 11 workers. The complainant further affirms that the termination of 1,300 workers had important consequences on their lives: some workers’ children had to leave school as they could not pay the tuition fee, some workers were evicted from their homes as they could not pay the rent and others got divorced due to economic reasons. In July 2014, the workers concerned were still contesting their termination and demanding their rights to associate and negotiate. According to the complainant, some of them work as contract workers or casual labourers in the formal and informal economies on a daily basis or on temporary contracts, some are in debt and others are rejected by companies because they are considered as PT Panarub Dwi Karya’s workers.
6. 570. In the complainant’s view, the factory violated the workers’ right to freedom of association by dismissing the union leaders and members, preventing them from exercising their right to strike, dismissing the workers who participated in the strike and forcing workers to leave their union and join another union favoured by the company. The complainant asks the Committee to urge the Government and the Ministry of Manpower and Transmigration, as well as the Department of Manpower and Transmigration of Tangerang City, Banten Province, to adopt the necessary measures to guarantee freedom of association rights, including the re-employment of all the workers dismissed for anti-union reasons.

B. The Government’s reply

1. 571. In its communication dated 4 March 2016, the Government provides its observations as well as those of the employer, represented by the management of another company from the Panarub Group, since the company in question has been closed.

Observations from the employer representative

1. 572. With regard to the termination of employment of trade union leaders, the employer representative indicates that: (i) the factory was in operation from 2007 but had to close due to financial difficulties in January 2014; (ii) the termination of employment of Kokom Komolawati and other workers in 2012 was a step taken by management to reduce its costs due to the financial losses of the factory; (iii) the termination of employment was done in three stages: 69 employees were terminated in February 2012, all of whom except Kokom Komalawati accepted the lay-off and their respective compensation in accordance with section 156(2)–(4) of Act No. 13 of 2003, 45 employees were dismissed in April 2012 and 80 employees in July 2012, which resulted in a total of 190 workers affected by the lay-off; (iv) as Kokom Komalawati refused the lay-off, the company suspended the worker on 24 February 2012 and fully paid her wages and the termination of employment dispute was addressed by the Industrial Relations Court; and (v) the SGBTS-GSBI PT PDK was registered in the Office of Department of Manpower RI on 14 March 2012, which was after the process of labour efficiency.
2. 573. With regard to the right to strike, the employer representative indicates that the strike of July 2012 was triggered because the company suspended the minimum wage but specifies that such suspension was approved by the District/City Minimum Wages (UMK) from the Governor of Banten Province, where the suspension was valid for three months. They further provide the following chronology of the strike:
   • – On 10 July 2012, bipartite negotiations were held between management and the union representatives to discuss the payment of wages and other allowances but no settlement was reached in the meeting.
   • – On 12 July 2012, the Field Coordinator of the union blew a whistle to simulate a fire drill and made most of the employees move to the football field. The Field Coordinator then made a speech while some workers tried to force other workers to exit the work area. The employees were later directed to the exit gate where Kokom Komalawati made another speech asking for further negotiations with management, who agreed to such negotiations on the condition that the employees would return to work, but the request was denied and a total of 1,745 employees remained on strike until 7 p.m.
   • – On 13 July 2012, Kokom Komalawati and her colleagues obstructed and intimidated employees who wanted to come to work and requested negotiations with the company, which were granted on the condition that the discussion would be attended by representatives from the Department of Manpower. However, the negotiations were halted because the situation was not conducive at that time.
   • – On 16 July 2012, Kokom Komalawati and her colleagues again obstructed and intimidated employees who wanted to come to work and almost started a fight with them. Kokom Komalawati made another speech in which she misrepresented the situation at the factory. Further discussions were attended by three representatives from the Department of Manpower, three representatives of the company and Kokom Komalawati and her colleagues who formulated several demands, including her reinstatement as well as that of Jamal Fikri. The management stated that both cases were being addressed as industrial disputes before the relevant entities and the meeting failed to hail any agreement. At a later stage, the company issued a final appeal to the employees on strike to return to their working unit but the strike lasted until 10 p.m. and most employees spent the night at the company, holding its leader and some members of management as hostages. There were 150 employees on strike while 818 employees worked.
   • – On 17 July 2012, Kokom Komalawati and 100 of her colleagues returned to rally and requested to negotiate, to which the company agreed on the condition that the employees would return to work. Since this was refused, the negotiations were cancelled and the factory re-issued calls for protesters to return to work. Later on, the Alliance party of Tangerang City and the DPC SBGTS invited management to negotiate outside the plant site, which the factory hoped would result in a final agreement instructing the protesters to return to work according to the normal schedule. There were 100 employees on strike while 929 employees worked. The company once again issued an appeal to striking workers to return to work.
   • – On 18 July 2012, Kokom Komalawati and her colleagues obstructed employees who wanted to come to work and almost started a fight between them. In response to the incident, the factory asked the Department of Manpower in Tangerang City for mediation which was requested by Kokom Komalawati and her colleagues but representatives from the Department of Manpower were unable to attend and the negotiations failed to take place. There were 100 employees on strike and the factory made another appeal to them to return to their work units.
   • – On 19 July 2012, Kokom Komalawati and her colleagues returned to obstruct and force employees to absent themselves from work and almost started clashes between them. The factory recorded that there were 155 employees absent from work for five working days, who were considered to have resigned in line with section 140 of Act No. 13 of 2003. With regard to the industrial dispute at issue, further mediation was performed by the National Mediation Centre (PMN) which submitted its report on 21 May 2013.
   • – On 20 July 2012, Kokom Komalawati and her colleagues returned to obstruct, coerce and intimidate employees who wanted to come to work. As the company recorded that there were 21 employees absent from work for five days, they considered that they had resigned in line with the applicable legislation.
   • – On 23 July 2012, there were 500 employees who had been absent from work for seven days and were considered as having resigned in line with the applicable rules and legislation. Since Kokom Komalawati and her colleagues coerced and intimidated the workers who were sent home by the company, only some of them left using the employee bus while others followed Kokom Komolawati and her colleagues.
3. 574. Concerning the strike action in October 2012, the employer representative indicates that the SBGTS-GSBI PT PDK and community organizations (Agency for Potential Development of Banten Big Family (BPPKB)) made an attack on the employees and destroyed facilities of the company. In September 2012, one worker who had been involved in the strike spread a bomb alert to several employees of the factory and was subsequently reported to Tangerang City Police and arrested, but in November 2012, the management of the factory requested the Tangerang City Police to suspend the investigation of the suspect and excused his actions.

Observations from the Government

1. 575. The Government provides information on the establishment and activities of the SBGTS-GSBI PT PDK, the allegations of intimidation of Kokom Komolawati, and termination of trade union leaders, members and other workers both for efficiency reasons and following their participation in the strike.
2. 576. With regard to the allegations of intimidation, the Government indicates that on 22 November 2012, Kokom Komalawati submitted a report to the Police Resort Metro, Tangerang City, alleging a criminal offence of obstructing freedom of association by intimidating her not to establish the SBGTS-GSBI PT PDK. In her report, she explained the chronological violations of freedom of association and claimed that management prevented her from establishing the trade union by intimidating her and offering her promotions. In particular, the worker indicated that, on 10 February 2012, she was summoned by the company management, informed that she would be promoted to a better position if she did not establish the trade union and was requested to join the existing SPN. The Government states that these allegations of violations of freedom of association were handled by the police, who conducted an investigation and found evidence of the establishment, registration and activities of the SBGTS-GSBI PT PDK. The police report indicates that the trade union was established on 25 February 2012 and registered on 14 March 2012 in the Department of Manpower, Tangerang City. The report also found that the union carried out various activities as evidenced by letters addressing various issues which were communicated to the company management from March to July 2012. The Government further indicates that on 31 December 2015, the police issued a letter regarding its investigation into the alleged acts of intimidation stating that the results of the investigation as well as testimonies of witnesses concluded that conditions in section 28 of Act No. 21 on Trade Unions, 2000, were not met.
3. 577. Concerning the allegations of dismissals of trade union leaders, the Government states that since the company was in financial difficulties, as evidenced by the financial audit reports dated 31 December 2009, 2010 and 2011 made by the independent auditor Kokasih, Nurdiyaman, Tjahjo & Partners, the termination of employment was an efficiency measure undertaken by the factory management to maintain its business activity. The Government states that in February 2012, 69 workers, including Kokom Komalawati, were dismissed for reasons of efficiency, out of which 68 workers claimed their rights and obtained compensation as stipulated in section 164(3) of Act No. 13 of 2003, while the dismissal process of Kokom Komalawati was conducted through the Industrial Relations Court because the worker refused the termination of her employment. In a decision dated 10 July 2013, the Industrial Relations Court declared the termination of employment between the factory and Kokom Komalawati for efficiency reasons with effect from 10 July 2013 and ordered the factory to pay her compensation of Indonesian rupiahs (IDR) 37,240,910. The worker appealed the decision to the Supreme Court on 19 August 2014 but, in a decision dated 19 February 2015, the Supreme Court declared the appeal not eligible due to its late submission exceeding 14 days from the enactment of the Industrial Relations Court decision, which thus became binding.
4. 578. With regard to the allegations of dismissals for having participated in a strike, the Government states that in line with section 137 of Act No. 13 on Employment, 2003, strike, which results from failed negotiation, is a fundamental right of workers/labourers and trade/labour unions that shall be staged legally, orderly and peacefully. It further indicates that section 140 of Act No. 13 of 2003 stipulates:
   • (1) Within a period of no less than 7 (seven) days prior to the actual realization of a strike, workers/labourers and trade/labour unions intending to stage a strike are under an obligation to give a written notification of the intention to the entrepreneur and the local government agency responsible for labour/manpower affairs.
   • (2) The notification as referred to under subsection (1) shall at least contain:
     • (a) the day and the date on which, and the hour at which they will start the strike;
     • (b) the venue of the strike;
     • (c) their reason for the strike and/or their demand;
     • (d) the signatures of the chairperson and secretary of the striking union and/or the signature of each of the chairpersons and secretaries of the unions participating in the strike, who shall be held responsible for the strike.
   • (3) If the strike is staged by workers/labourers who are not members of any trade/labour union, the notification as referred to under subsection (2) shall be signed by workers/labourers’ representatives who have been appointed to coordinate and/or be held accountable for the strike.
   • (4) If a strike is performed not as referred to under subsection (1), then, in order to save production equipment and enterprise assets, the entrepreneur may take temporary action by:
     • (a) prohibiting striking workers/labourers from being present at locations where production processes normally take place; or
     • (b) prohibiting striking workers/labourers from being present at the enterprise’s premise if necessary.
5. The Government states that the strike undertaken by Kokom Komolawati and other employees can be considered as illegal because it did not correspond to the procedure of strike implementation as stipulated in section 140 of Act No. 13 of 2003. It further indicates that the employees who were on strike from 12 to 23 July 2012 were encouraged by the factory to return to work on 12, 13, 16, 17 and 18 July 2012. Since they ignored the company’s appeal to return to work, they were later qualified as resigned employees in line with section 168 of Act No. 13 of 2003, which stipulates that:
   • (1) An entrepreneur may terminate the employment of a worker/labourer if the worker/labourer has been absent from work for no less than 5 (five) workdays consecutively without submitting to the entrepreneur a written account [explaining why he/she is absent from work] supplemented with valid evidence [to support the truth of the explanation] and the entrepreneur has properly summoned him or her twice in writing because such absenteeism may disqualify the worker/labourer in question from continuing their employment.
   • (2) The written explanation supplemented with valid evidence as referred to under subsection (1) must be submitted [to the management] at the latest on the first day on which the worker/labourer in question comes back to the workplace to resume work.
   • (3) In the event of the termination of employment as referred to under subsection (1), the affected worker/labourer shall be entitled to compensation pay for her/his entitlements that he/she has not used according to what is stipulated under subsection (4) of article 156 and they shall be given detachment money whose amount and the procedures and methods associated with its payment shall be regulated in work agreements, enterprise rules and regulations, or collective work agreements.
6. 579. The Government concludes by stating that as an ILO member State it remains committed to the fulfilment of the rights of workers and it has guaranteed the freedom of association in Indonesia, especially in the PT PDK company by ensuring the establishment of trade unions – the SPN, the SPSI and the Trade Union of Textile and Footwear Garment – the Association of Independent Trade Unions (SGBTS–GSBI), and by allowing the trade unions to carry out their activities in line with national procedures and regulations.

The Committee’s conclusions

1. 580. The Committee notes that the present case concerns allegations of dismissal by the PT PDK of PTP SBGTS-GSBI PT PDK trade union leaders, restriction on the right to strike by using police and paramilitary forces 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 management.
2. 581. With regard to the dismissal of nine trade union leaders in February 2012, the Committee notes that while the complainant alleges that these dismissals took place shortly after the registration of the PTP SBGTS-GSBI PT PDK demonstrating their anti-union character and were contrary to section 164(3) of the Act of Manpower since they were apparently done for rationalization (efficiency) reasons although the company continued its production, both the Government and the employer representative claim that the dismissal of trade union leaders preceded the registration of the trade union which only took place on 14 March 2012 and that a total of 190 workers were dismissed with full compensation from February to July 2012 for reasons of rationalization (efficiency) so as to address the factory’s financial difficulties; despite these efforts, the factory had to close down in January 2014. The Committee further notes the complainant’s statement that it is common practice in Indonesia to lay off trade union leaders for efficiency reasons and that with the exception of Kokom Komalawati, the remaining eight union leaders accepted their dismissal in the following months. The Committee notes the Government’s indication that since Kokom Komolawati had not accepted her dismissal the case was referred to the Industrial Relations Court, which declared the termination of employment between the worker and the factory due to efficiency reasons effective from 10 July 2013 and that the worker’s appeal to the Supreme Court was declared non-eligible due to its late submission.
3. 582. While taking due note of the financial difficulties faced by the factory which may under certain circumstances justify staff reduction programmes, the Committee notes with concern that the dismissal of nine trade union leaders, including Kokom Komolawati, took place during the period when the trade union was being established and that the trade union leaders were among the first to be terminated in February 2012, despite the continuation of the factory’s activities until January 2014. The Committee further finds that should the complainant’s indication that, a few days prior to her dismissal, Kokom Komolawati was offered a promotion and pressured by management not to establish the trade union and join the existing union, be founded, it would support the allegation that the dismissal of nine trade union leaders was not motivated by purely economic reasons. In this regard, the Committee wishes to point out that the application of staff reduction programmes must not be used to carry out acts of anti-union discrimination [see Digest of decisions and principles of the Freedom of Association Committee, fifth (revised) edition, 2006, para. 796] and that the Committee has emphasized the advisability of giving priority to worker representatives with regard to their retention in employment in case of reduction of the workforce to ensure their effective protection [see Digest, op. cit., para. 833]. Furthermore, the Committee has drawn attention to the Workers’ Representatives Convention, 1971 (No. 135), and Recommendation, 1971 (No. 143), in which it is expressly established that worker representatives in the undertaking shall enjoy effective protection against any act prejudicial to them, including dismissal, based on their status or activities as worker representatives or on union membership, or participation in union activities, in so far as they act in conformity with existing laws or collective agreements or other jointly agreed arrangements [see Digest, op. cit., para. 800]. The Committee therefore considers that efforts should have been made in these circumstances to giving priority to retaining the trade union leaders in employment, which would have enabled consultations to take place between the trade union and the company on the rationalization and staff reduction process. The Committee urges the Government to ensure respect for these principles.
4. 583. Concerning the alleged restriction on the right to strike by using police and paramilitary intervention on striking workers, the Committee notes the complainant’s allegations that: (i) a strike took place at the factory from 12 to 23 July 2012 with more than 1,300 workers participating; (ii) the striking workers were confronted with a violent intervention from the security, police and paramilitary groups who tried to disperse the strike by force and used tear gas against the workers as well as pushed, hit and pelted them with blunt objects; (iii) as a result of the intervention, two women fainted and another 32 workers were injured; and (iv) 75 workers were forced by management to stand in the yard and make statements not to participate in protests and to resign from both the trade union and the company. The Committee expresses its concern at the high number of injured workers reported and regrets that neither the employer representative nor the Government provide any observations on these specific allegations, but takes due note of the detailed information provided on the evolution of the strike and the numerous, albeit failed, attempts at negotiation and mediation, one of which could not proceed due to the Government’s absence. The Committee further notes that, according to the employer representative, some union members forced other employees to join the strike, obstructed them from working and intimidated them, almost causing clashes among the workers, and that at one point they stayed at the factory at night, keeping the factory leader and some members of management as hostages. Noting that the Government and the employer representative, while invoking actions such as intimidation of workers and prevention of the management to leave the factory, do not refer to specific acts of violence or disruption of public order and, at the same time, do not deny the allegation that the police and other forces of intervention were used for strike-breaking purposes, the Committee recalls that, while the exercise of the right to strike should respect the freedom to work of non-strikers, as established by the legislation, as well as the right of management to enter the premises of the enterprise [see Digest, op. cit., para. 652], the authorities should resort to calling in the police in a strike situation only if there is a genuine threat to public order. The intervention of the police should be in proportion to the threat to public order and governments should take measures to ensure that the competent authorities receive adequate instructions so as to avoid the danger of excessive violence in trying to control demonstrations that might undermine public order. The use of police for strike-breaking purposes is an infringement of trade union rights [see Digest, op. cit., paras 643 and 647]. The Committee also wishes to emphasize 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]. In light of these principles, the Committee requests the Government to take the necessary measures to conduct an independent investigation into the allegations of the use of police and other forces on striking workers and trusts that the abovementioned principles will be fully respected. 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.
5. 584. Furthermore, the Committee notes the complainant’s indication that its protest of October 2012 was interrupted by workers, mobilized by management, who used blunt weapons injuring 11 protesting workers, as well as the employer representative’s statement that during the protest trade union members and communities’ organizations attacked the company’s employees and destroyed its facilities, and that, a month earlier, one worker issued a bomb alert at the factory. The Committee notes with concern the acts of violence raised by both sides and wishes to point out that the principle of freedom of association does not protect abuses consisting of criminal acts while exercising the right to strike [see Digest, op. cit., para. 667].
6. 585. With regard to the allegations of dismissals of striking workers for anti-union purposes, the Committee notes the complainant’s indication that: (i) on the fifth day of the strike, management did not allow the striking workers to work and 1,300 workers were forcefully declared to have resigned; (ii) a protest was organized in October 2012 asking for the reinstatement of the workers; and (iii) although some of the workers were later re-employed as new workers or found work on a daily or temporary basis, many suffer from important socio-economic consequences resulting from the loss of stable income and continue to contest their termination. The Committee notes that the Government and the employer representative do not contest the fact that a high number of workers lost their jobs following their participation in the strike of July 2012, but observes that there are divergent views between the complainant, on the one hand, and the Government and the employer representative, on the other hand, as to the exact number of workers concerned (the complainant refers to 1,300 and the employer representative to around 600) and to the legality of the measures taken. While the complainant asserts that the workers were dismissed for anti-union purposes and asks for their reinstatement, the Government and the employer representative indicate that management had issued repeated appeals to the striking workers to return to their work units but since they had ignored the company’s appeals and had been absent from work for five or more consecutive working days they were considered as having resigned as a result of work stoppage in line with section 168 of Act No. 13 of 2003. The Committee recalls that the relevant legislation provides that workers who have been absent from work for five consecutive working days without any written notification and valid evidence and who have been summoned twice by the employer in a written manner can be terminated from employment and qualified as resigned employees. The Committee also notes the Government’s and the employer representative’s view that the strike undertaken can be considered as illegal because it did not comply with the requirements stipulated in section 140 of Act No. 13 of 2003, but observes that they do not provide details as to the precise requirements that were not met. While noting that it does not have at its disposal sufficient information to assess whether the prerequisites for declaring a strike were met in the present case, the Committee wishes to point out that the responsibility for declaring a strike illegal should lie with an independent and impartial body, such as an independent court. Bearing in mind the circumstances of this case and recalling that, as was acknowledged by the Government and the employer representative, the company had not paid several months of wages, the Committee considers that calling a strike if necessary to protest against the non-payment of part of all of the workers’ wages and to demand better working conditions constitutes a legitimate trade union activity and would thus not give rise to considerations of justified or unjustified absence pursuant to section 168 of Act No. 13 of 2003. Expressing its serious concern at the large number of workers who were considered to have resigned after having participated in the strike of July 2012, the Committee recalls that arrests and dismissals of strikers on a large scale involve a serious risk of abuse and place freedom of association in grave jeopardy. The competent authorities should be given appropriate instruction so as to obviate the dangers to freedom of association that such arrests and dismissals involve [see Digest, op. cit., para. 674]. In light of these 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.
7. 586. Concerning the allegations of interference in trade union activities, the Committee notes, on the one hand, the complainant’s allegation that, a few days prior to her dismissal, Kokom Komolawati was pressured by management not to establish the PTP SBGTS-GSBI PT PDK and to join the existing union and was offered a promotion in return, and, on the other hand, the Government’s statement that, in response to these allegations, an investigation was conducted by the police which concluded that the PTP SBGTS-GSBI PT PDK had been successfully established and was functioning, and that, in relation to the alleged intimidation, a police letter dated 31 December 2015 found that the conditions referred to in section 28 of Act No. 21 of 2000 were not met. The Committee requests the Government to provide a copy of the report of the investigation into the alleged acts of intimidation (in English, if possible).
8. 587. The Committee further observes that the complainant indicates that, on 20 July 2012, management established a new trade union at the factory and obliged every worker, including through the use of paramilitary rangers, to resign from their previous trade union membership and to join the newly created trade union supported by management, and regrets that neither the Government nor the employer representative provide observations on these specific allegations of interference. The Committee expresses its concern over the alleged acts of interference in trade union affairs and wishes to emphasize that Article 2 of Convention No. 98 establishes the total independence of workers’ organizations from employers in exercising their activities. The existence of legislative provisions prohibiting acts of interference on the part of the authorities, or by organizations of workers and employers in each other’s affairs, is insufficient if they are not accompanied by efficient procedures to ensure their implementation in practice [see Digest, op. cit., paras 855 and 861]. The Committee has also previously stated that as regards allegations of anti-union tactics in the form of bribes offered to union members to encourage their withdrawal from the union and the presentation of statements of resignation to the workers, as well as the alleged efforts made to create puppet unions, the Committee considers such acts to be contrary to Article 2 of Convention No. 98, which provides that workers’ and employers’ organizations shall enjoy adequate protection against any acts of interference by each other or each other’s agents in their establishment, functioning or administration [see Digest, op. cit., para. 858]. The Committee urges the Government to provide its observations on these allegations. 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.
9. 588. 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.