2008 Annual Survey of violations of trade union rights - Indonesia
|Publisher||International Trade Union Confederation|
|Publication Date||20 November 2008|
|Cite as||International Trade Union Confederation, 2008 Annual Survey of violations of trade union rights - Indonesia, 20 November 2008, available at: http://www.refworld.org/docid/4c52ca8ac.html [accessed 22 October 2014]|
ILO Core Conventions Ratified: 29 – 87 – 98 – 100 – 105 – 111 – 138 – 182
The government of President Susilo Bambang Yudhoyono continued to maintain its pledge to not seek amendments to the labour law viewed as being anti-union by the trade union movement, but did little to enforce the labour law in practice. Employers continued to violate the law through widespread use of temporary contract labourers with few rights, and repressed unions through myriad tactics.
Trade union rights in law
Private sector workers are by law free to form unions and draw up their own rules. The Trade Union Act 2000 requires unions to register with the Manpower Ministry in order to be recognised. There can be more than one union at a workplace. The law allows unions to form nationwide and across business sectors – not just at enterprise level. Employers who prevent a worker from joining a union are liable to a fine or imprisonment. The law also gives civil servants the right to organise, but their activities are carefully regulated.
Restrictions on union rights: A court can dissolve a trade union if its basic principles conflict with the 1945 Constitution or "Pancasila", the national ideology which puts the emphasis on consensus and national unity, or if its members or leaders have committed a crime against national security in the union's name and have been sentenced to at least five years in prison. Once a union is dissolved, its leaders cannot form another one for three years.
Unions must keep the government informed of changes in their governing bodies. If they do not, the union could lose official recognition and, therefore, the right to represent its members in collective bargaining and other areas of union activity.
Under Article 119 of the Manpower Act, in order to negotiate a collective agreement, a union must have membership equal to more than 50% of the total workforce in the establishment or receive more than 50% support in a vote of all the enterprise's workers on its demands.
Collective agreements must be concluded within 30 days after the beginning of negotiations or must be submitted to the Manpower Ministry for mediation, conciliation or arbitration. A collective agreement is valid for two years and may be extended for a maximum of one more year.
Section 106 of the Manpower Act compels all companies with more than 50 employees to establish a "bipartite cooperation institution", with representation proportionate to the number of union and nonunion workers in the factory. The role of these institutions overlaps with the representative role of unions.
Restrictions on the right to strike: The Manpower Act 2003 includes a prohibition on replacement workers during legal strikes and higher pay if a worker is suspended during the labour dispute process.
However, for a strike to be legal, workers must give seven days advance notification to the authorities and to the employer, specifying the starting and ending time of the strike, venue for the action, and reasons for the strike, and including signatures of the chairperson and secretary of the striking union. Ministerial regulation KEP.232/MEN/2003 declares illegal all strikes at "enterprises that cater to the interests of the general public and/or at enterprises whose activities would endanger the safety of human life if discontinued ... ". What types of enterprises are included in this classification is not specified, leaving it to the government's discretion. The same regulation also classifies strikes as illegal if they are "not as a result of failed negotiations" and gives employers leeway to obstruct a union's move to strike because failure is classified as negotiations that lead to a deadlock "that is declared by both sides."
Before the workers can proceed with a strike, they must also engage in lengthy mediation with the employer and, if that fails, proceed to mediation facilitated by a government mediator. Ministerial regulation KEP.232/MEN/2003 also provides that in the case of an illegal strike, an entrepreneur must make two written appeals within a period of seven days for workers to return. Workers who do not respond to those appeals are considered to have resigned.
Since union leaders consider these mediation procedures both excessively cumbersome and time consuming, they are often not followed – meaning most strikes are classified by the authorities as wild-cat strikes.
In practice, strikes have been prohibited in the public sector, in essential services, and at enterprises that serve the public interest. This clearly goes beyond the definition of acceptable prohibitions on strike action by the ILO Committee on Freedom of Association.
Trade union rights in practice and Violations in 2007
Systematic and illegal use of contract labour to undermine unions: One of the biggest obstacles to union organizing and effective exercise of freedom of association by workers has been the widespread illegal use of contract labour by employers. In Section 59 of the Manpower Act, contract labour is supposed to be used only for work that is "temporary in nature". However, many employers are wilfully violating these provisions with the connivance of local offices of the Ministry of Manpower as a means of reducing labour costs and eliminating unions. Companies frequently declare bankruptcy in order to avoid paying the significant severance payments provided for under law, close the factory for several days, and then rehire workers as contract labour at a lower cost. Leaders and activists of the union are usually not rehired. Employers have done so with the apparent approval of both Provincial and Central Committees for the Settlement of Labour Disputes. In other instances, the employer simply starts hiring contract labourers for various positions and retrenching permanent workers or not replacing them when they depart.
Anti-union discrimination: According to reports from national trade union organisations such as the Indonesian Prosperity Trade Union (KSBSI), and from sectoral federations, the relations between government, employers and workers are still tense. Frequently, when workers try to set up trade unions, companies either terminate their employment or demote union leaders and members, making workers afraid to organise or join a union. Some unions report that strike leaders were singled out for lay-offs when companies downsized their workforce.
For example, the Gran Melia Hotel Jakarta management engaged in a systematic campaign to weaken and undermine the SPM Gran Melia union. In the last weeks of 2006, management fired 9 of the core leaders of the union and then refused mediation attempts by the IUF-affiliated FSPM Hotel Federation. In February, when he went to meet with the union membership, Odie Hudiyanto, the FSPM secretary general, was ejected by security guards and permanently barred from entering the hotel premises. Management then unilaterally ceased collecting union dues through the check-off system. Management's harassment campaign even meant union members called by the Industrial Court, or seeking to attend union meetings, were not allowed to leave work. A total of 24 workers, many current or former leaders of the SPM Gran Melia union, were terminated on the pretence of downsizing, but the union challenged these sackings in court.
Another clear case of anti-union discrimination took place at PT Mulia Knitting Factory in May 2007. Management learned that 19 workers were named in documents submitted to the authorities in order to register a new SPGTS Mulia Knitting Union. As soon as the factory received a copy of the application on 21 May, management filed a criminal complaint against the workers – claiming that they had used the factory's address without permission in their application. No communication had taken place with the union before the charge was filed, and no similar requirement was made against the existing pro-management SPSI union, which had used the factory address for years. The next day, management suspended the new union president Rukandi indefinitely. Within two weeks, three of the 18 remaining union leaders were fired, while the remaining 15 were transferred to PT Mulia Spindo (located 62 kilometres away) after they refused demands to resign from the union. Meanwhile, supervisors in the factory launched a systematic intimidation campaign against rank-and-file members to force them to disassociate themselves from the new union. Moreover, the management also filed a complaint with the Disnaker (local labour authorities) seeking the dissolution of the GSBI general union that supported the creation of the union at the factory. Despite the intervention of international campaigners as well as overseas brands sourcing from the factory, there was no progress in reversing this anti-union campaign by year's end.
An even more blatant case of overly broad legal authority to harass trade unionists is that of Sarta bin Sarim, the chairperson of the union at PT Tambun Kusuma, which is affiliated to the Federation of Construction, Informal and General Workers Unions of Indonesia (FKUI-SBSI). On 1 May, Sarta and other workers were encouraging workers from various factories to take part in a peaceful May Day demonstration in Tanggerang. After the demonstration, local police went to his home and arrested him – but did not produce a warrant to do so, or specify on what criminal charge he was being detained. On several occasions, he was physically abused while in custody. Only after a major union protest by FKUI-SBSI did police reveal that Sarta was being held for violating Criminal Code section 160 ("Instigation") and section 335 ("Unpleasant acts"). The latter section is an antiquated Dutch colonial law commonly used by the authorities to harass and incarcerate activists, including trade union leaders. Sarta received the report of the police investigation only one day before he was brought to court on June 11.
On 30 July, Sarta was convicted only of violating section 335 and sentenced to three months in prison – the exact amount of time he had already served – and released on August 1. FKUI-SBSI filed a Freedom of Association complaint with the ILO (Case No. 2585), and the ILO CFA condemned that Sarta had been held for three months for involvement in organizing a peaceful May Day demonstration. The ILO CFA also demanded that Indonesia either revoke or amend sections 160 and 335 so as to ensure that "these provisions cannot be used abusively as a pretext for arbitrary arrest and detention of trade unionists". Despite a threat by prosecutors that appealing the conviction could result in a longer prison sentence for Sarta, the KSBSI appealed his conviction to the High Court. At the end of the year, the case was still pending.
When the FKUI-SBSI union organized the PT Satya Raya Keramindo Indah (SRKI) textile factory in Tanggerang in July, management retaliated by targeting the union leaders. On 20 July, union chairman Natim was detained in the factory security office from 3 p.m. to 9 p.m., and interrogated by eight security officers and two human resources personnel on a spurious charge of manipulating costs under his health benefit. He was continuously threatened and ultimately compelled to sign the interrogation report and resign from his job. The next day, on 21 July, union vice chairman Riyanto was detained by factory security and similarly interrogated and called on to resign. At 7 p.m. over 300 workers gathered outside the management office to demand an end to the harassment of the union leaders, and management responded by seizing union vice chair Arzani when he went to negotiate, accusing him of being a provocateur. Both Riyanto and Arzani were held in detention at the factory until 1 in the morning before being released after being issued a "3rd warning" letter. Following the Idul Fitri holiday, both Riyanto and Arzani were denied entry to the factory and informed that they had been terminated from their positions.
Justice slow and not guaranteed: Despite the introduction of tripartite Industrial Courts, there has been little appreciable improvement in effective access to justice. Legal procedures are very long, with anti-union discrimination cases sometimes taking up to six years. Bribery and corruption of judges have been a huge problem for workers involved in disputes, and accordingly decisions are often not in their favour. While dismissed workers may be financially recompensed, they are rarely reinstated.
Unjust and arbitrary decisions by local officials: Decentralization of authority over labour disputes and other matters of local governance have caused significant barriers to unions' struggles.
In February, PT. Malindo Kencana Utama Tarakan (MKUT) in Tarakan refused to bargain with the established union, which is affiliated with SBSI. Management took punitive measures against 19 leaders of the union in late February. An appeal by the union to the local Ministry of Manpower office to mediate the dispute was refused. When workers went out on strike on March 20 to demand management agree to negotiate, the factory fired 44 workers, including many of the key leaders of the union.
In March, at PT Batamindo Investment Cakrawala, based in the Batam special economic zone, local Ministry of Manpower officials arbitrarily denied registration of a new union affiliated with the Indonesian Metalworkers Union (FSPMI/ITUC) because the officials unilaterally decided that it was not appropriate for those workers to be represented by that union.
When the FSPMI organized a demonstration against the government policy on SEZs in Bekasi on 9 April, a joint task force of military and police personnel blocked their progress and prevented workers from unfurling their banners or proceeding further.
Throughout the year, the union at Angkasa Pura I, the government-controlled company in charge of airport traffic services and airport functions at 11 airports in the eastern portion of the country, faced anti-union intimidation and harassment directed at union executives. Furthermore, the management refused to implement in good faith the collective agreement signed by both sides in 2005. Management unilaterally changed the terms of the agreement covering pay, health benefits, retirement allowances, and pension entitlements – prompting union complaints to authorities that fell on deaf ears.
Interference in strikes by pro-management thugs, police, military: Trade unionists also cite a number of attacks on their organisers by paramilitary groups, supported by the military and police and paid for by employers, to intimidate workers or break strikes. Such retribution against unionists has not been prevented or remedied effectively.
In early April, SBSI members on strike at the garment factory PT Elok Indobratama Agung in Jakarta were attacked by a gang of thugs outside the factory and several workers were injured. The union members then went to report the incident to local police, but were met by a hostile reception during which police told them to return to their jobs and threatened them with violence. The employer then threatened to terminate 227 strikers.
The Federation of Metal, Machine and Electronic SBSI Trade Union (Federation of Lomenik SBSI) filed a complaint in 2007 with the ILO CFA (case no. 2589), stating that the employer of PT Cigading Habeam Centre Company refused to bargain with the union, locked out (and ultimately terminated) 480 workers and joined forces with the military controlled Baladika cooperative to keep the factory running. Military forces were involved in guarding the factory, intimidating workers, and in one instance, firing blanks from their rifles at a union picket.