2009 Annual Survey of violations of trade union rights - Indonesia
|Publisher||International Trade Union Confederation|
|Publication Date||11 June 2009|
|Cite as||International Trade Union Confederation, 2009 Annual Survey of violations of trade union rights - Indonesia, 11 June 2009, available at: http://www.refworld.org/docid/4c52cae6c.html [accessed 3 May 2016]|
ILO Core Conventions Ratified: 29 – 87 – 98 – 100 – 105 – 111 – 138 – 182
The government of Indonesia continued to undermine worker rights by failing to enforce labour laws effectively. Unions that attempted to enforce their basic contractual or statutory rights by resorting to strikes as a last resort found that the government ignored the flagrant violations of law by employers and pummelled the workers and their unions by declaring the strikes illegal. The ILO noted that Indonesia still needs to amend its current labour laws to provide full protection to workers under Conventions 87 and 98. In addition, child labour in the form of domestic work remains a substantial issue.
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 non-union 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 if a worker is suspended during the labour dispute process.
The law specifies that prior to engaging in a strike action, the union, or a worker representative in the absence of a registered union, must give seven days advance notice to the authorities and to the employer. The notice must include the starting and ending time of the strike; the location of pickets; the reason(s) for the strike; and be signed by the chairperson and secretary of the union. In addition, Ministerial regulation KEP.232/MEN/2003 defines strikes as illegal if they are "not as a result of failed negotiations". This provision gives employers unilateral power to obstruct a union's ability to strike because "failure" is classified as negotiations that lead to a deadlock "that is declared by both sides". The same regulation prohibits 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...". The types of enterprises covered by this definition are not specified, leaving it to the government's discretion to decide on a case by case basis.
In one last layer of bureaucracy to frustrate a union's ability to strike, before a union can proceed with a strike, the union must also engage in mediation with the employer and, if that fails, proceed to mediation facilitated by a government mediator. In the event a strike is declared "illegal", Ministerial regulation KEP.232/MEN/2003 provides that, an employer may consider a striking worker to have resigned if the worker ignores two written requests, sent within a period of seven days, to return to work.
Since union leaders consider these mediation procedures both excessively cumbersome and time consuming, they are often ignored – meaning the government declares most strikes as illegal job actions, which results in the mass dismissals of union officials and workers as well as the arrest and imprisonment of union leaders under section 335 of the Criminal Code.
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 2008
There are four primary issues that undermine and frustrate effective union representation of workers and the proper exercise of the rights guaranteed under ILO Convention No 87 on freedom of association: (1) illegal and improper use of contract labour; (2) statutorily imposed negotiation and dispute resolution processes that are flawed and undermine the ability of unions to engage in lawful strikes; (3) government officials who turn a blind eye to companies that flagrantly violate labour laws; and (4) government officials who are more prone to side with employers than workers in interpreting, or ignoring, labour law violations.
Contract labour: Section 59 of the Manpower Act, provides that contract labour is to be used only for work that is "temporary in nature". However, many employers wilfully violate these provisions as a way to reducing labour costs and to eliminate or avoid union organisations.
On 31 March, hundreds of contract workers outsourced by bus operator Transjakarta and who are represented by the Indonesian Madani Labor Union (IMLU) demonstrated to press their demand to be considered permanent employees. IMLU Union Chairman Yudha Adi said Transjakarta had more than 400 outsourced employees who had been working between two to four years as cashiers, ticketing agents, and barrier guards. Yudha Adi added that companies avoid paying annual bonuses by transferring employees to a new company every year.
On 31 March, too, outsourced employees of the Greater Jakarta arm of the state railway company PT Kereta Api and who are represented by the Jakarta Railways Union demonstrated to have their status changed to permanent employees. Many of the employees had been working for the company for more than five years in their jobs as ticket agents.
On 18 September, over 300 fast food restaurant workers and activists from Congress of the Indonesian Labour Union Alliance (KASBI) demonstrated at Surabaya Plaza Shopping Centre to protest the recent dismissal of two contract workers by a Kentucky Fried Chicken (KFC) fast-food restaurant, which is operated by PT Fast Food Indonesia. A KASBI spokesperson said that 20 of the company's 120 workers have been employed under an internship program that violates current labour law. Head of the municipal manpower agency Ahmad Syafei said his office had never issued a permit to PT Fast Food Indonesia to employ interns in its restaurants, including KFC's.
Flagrant violations of worker benefits provided in labour law: Most companies in Indonesia flaunt the basic provisions of labour law with impunity. Even where unions have successfully negotiated collective bargaining agreements, employers will still ignore worker entitlements under labour law and/or blatantly repudiate the terms of the agreements. Indonesia's labour law fails to protect workers because the law does not distinguish strike actions to enforce labour law or contract rights from strikes solely involving the economic interests of workers.
In what is believed to reflect labour conditions throughout Indonesia, more than 90% of the workers in North Sumatra have been left unprotected due to the inadequate enforcement of labour law. Data from the state-owned insurance company PT Jamsostek showed that less than 10% of the workers in the province (450,000 out of 5,000,000) were covered by company contributions for social security programs. Executive Director of PT Jamsostek's northern Sumatra regional office Mas'ud Muhammad blamed the lack of participation in social security on the absence of law enforcement and local governments' failure to protect workers. On 30 April, thousands of workers from Indonesian Workers Association (Aspek Indonesia) and the National Worker Association (SPN) demonstrated at Jakarta's City Hall to demand that the government punish employers who do not provide life and accident insurance. Endang Sunarto, Chairman of SPN's Jakarta chapter, said that around 95-97% of companies where union members work do not provide life and accident insurance for their employees as mandated by regulation.
Worker frustration leads to precarious wildcat strikes: On 1 March, PT Tirta Samudera Caraka (TSC), a company that operates the SST Berau, a coal loading and transfer barge at Maura Pantai in the Sulawesi Sea, engaged in a blatant act of union busting when it rejected its union agreement with F-Hukatan SBSI (Federation of Wood, Forestry and Agriculture Union), a Confederation of Indonesian Prosperous Labor Union (KSBSI) affiliate. TSC informed its workers that they would have to sign individual employment contracts if they wanted to continue to work. After discussions with the company failed, the union began a strike on 4 March but returned to work the next day after the company said it would meet with the union. Instead of discussions, the company dismissed 40 workers, all of whom were union members. Attempts to mediate the dispute through government procedures have failed. The last mediation meeting was held on 15 August. Union officials dismissed in March included F Hukatan Berau, Branch Leaders Suyadi and Samsul Edi, and TSC Leaders Markus Elpi Andi and Apner Musa.
On 7 May, airport workers represented by Serikat Pekerja PT Angkasa Pura 1 union (SPAP 1), a Public Service International (PSI) affiliate, staged strikes at five airports operated by state-owned PT Angkasa Pura I. The strike was the result of the company's refusal to implement provisions of the 2006 agreement with the union concerning salaries, pension payments, and health insurance. As a result of the strike, PT Angkasa Pura I sacked Mr Arif Islam, SPAP 1 Sepingan Branch Chairman, and suspended the following SPAP 1 union officials: Ms. Sulistiani, General Secretary; Ms. Sri Rejeki, Head of Human Resources and Development; Ms. Milda, Head of the Legal Department; Ms. Asnawaty, General Treasurer; Mr. Trijono, Chair, head office branch; Mr. Effendy Sulistiono, Secretary, head office branch; and Mr. Florentinus Subandi, Field Coordinator, head office branch.
In late June and early July, workers at the French-owned garment manufacturer PT Mitra Garment Indoraya in Bali represented by the enterprise-level SBSI union engaged in a strike to protest the company's plan to reduce the piece rate for sewers by 57%. In retaliation for the strike, the company illegally changed the status of 591 workers in the sewing division, who refused to accept the piece rate reduction, to contract workers. The remaining 219 workers in the sewing division, who accepted the piece rate reduction, retained their status as regular employees.
On 9 September, hundreds of workers from heavy equipment maker PT Trakindo Utama demonstrated at the government's Timika Transmigration and Manpower Agency office in Timika, Papua, to demand that the agency withdraw a letter issued on 15 April which stated that the union's strike notice was illegal. Jeremi Kumbubuy, head of PT Trakindo's labour union, said that the company had dismissed 21 workers and issued reprimands to 700 more for going on strike from 18-23 April to demand a salary increase.
On 3 October, a company official at PT Remaja Pesona Industi, a garment factory in Malang, dismissed more than 50 of its 150 workers. Muhammad Yusuf, PT Remaja Pesona Industi Union Secretary, KSBSI, said that the company only dismissed workers who participated in a recent strike over Idul Fitri bonuses.
On 22 October, the F-Hukatan union, which represents workers at PT Wachyuni Mandira, a shrimp farming and processing operation in South Sumatra, requested negotiations with the company after the company stopped government retirement fund contributions. When the company ignored the union's requests for negotiations, the union engaged in a strike from 27 November to 4 December. On 2 December, the Manpower office in Jarkarta ruled that the strike was illegal. As a result, police arrested two union leaders, Mr Yuce Hengki Sadok and Mr. Winardi, and charged them with violations of the criminal code for inciting workers to engage in an unlawful strike. In addition to the arrests, the company sacked 400 workers and evicted them from company-provided housing. The final outcome of these cases was unknown at the time of writing of this report.
Retaliation for union activity: In an ongoing campaign of intimidation, discrimination, and harassment against union officials and members, on 24 July management at PT Bekaert Advanced Filtration in Tangerang dismissed all worker representatives on the Lomenik-SBSI union plant committee. Lomenik-SBSI is an International Metalworkers' Federation (IMF) affiliate. Other discriminatory acts taken against union members included denial of overtime; pressuring workers to resign from the union; offering bribes to union leadership; and interrogating workers about their union activities.
On 27 March, Malaysian-based PT Smart Glove Indonesia in Medan, North Sumatra, summarily dismissed 97 workers for attempting to form a union. One of the dismissed workers said that the company had been violating labour law.
On 5 November 2008, around 50 workers demonstrated at the Hotel Grand Aquila in Bandung, West Java province, to demand union recognition and the reinstatement of nine dismissed workers. The dispute started on 2 September when the hotel refused to recognise the Hotel Grand Aquila Bandung Workers' Union, an affiliate of the Independent Federation of Hotel Unions (FSPM) and the IUF and dismissed nine workers including the union's president, Sangkot. The hotel also sent a letter to all of its 320 workers that warned them not to join the union. Twenty members resigned from the union after receiving the letter. The final disposition of these cases is unknown at the time of this report.
Police violence/arrest of union officials and workers: On 18 November, Badriah, a union member of the Indonesian People's Trade Union (SPRI) and a worker at PT Rimba Wood Arsi Lestari in Banten was sentenced by a criminal court to 32 months in prison for destruction of private property under Article 406 of the Criminal Code. The case resulted from an incident on 19 June when Badriah was told to resign after requesting leave from work to take care of her sick child. She refused to sign the letter and tore it up. The management then reported her to the police for destruction of private property. The final disposition of these cases is unknown at the time of this report.
On 10 December, at least nine persons, including one woman, were injured and hospitalised when police attacked about 15,000 members of the IMF affiliated Federation of Indonesian Metal Workers' Union (FSPMI) who demonstrated in front of the Governor and Regent offices in Batam to demand a wage increase. The police also detained three FSPMI members.
Child domestic workers: More than 700,000 children, mainly girls, work as domestic workers in Indonesia. Typically recruited between the ages of 12 and 15, often on false promises of decent wages and working conditions, they may work 14 to 18 hours a day, seven days a week, earning far less than the prevailing minimum wage. In the worst cases, child domestic workers are paid no salary at all and are physically, sexually and psychologically abused. Domestic workers are excluded from existing national labour laws, which afford protections such as minimum wage, an eight-hour work day, weekly day of rest, and vacation time. At this writing, draft national legislation that would mandate an eight-hour work day, a weekly day of rest, and an annual holiday for domestic workers remained stalled in the Ministry of Manpower.
Justice prevails: In a case dating back to late 2006, Jakarta City Industrial Relations Court has upheld the claims of eight Gran Melia Hotel Workers in a case against PT Suryalaya Anindita International (the company which owns the Jakarta Gran Melia Hotel). The Court ordered the Gran Melia Hotel management to reinstate the eight workers to their original positions at the hotel. In addition, the hotel was ordered to pay the service charge due to the eight workers, retroactive to January 2008.
Justice denied: In May of 2007, PT Mulia Knitting Factory in Jakarta dismissed, suspended, or transferred 19 workers at the factory who were attempting to register the SPGTS Mulia Knitting Union. Since then, the union has been fighting for reinstatement and filed cases with the Labour Ministry and the Indonesian National Human Rights Commission (Komnas HAM). In a recommendation issued on 7 April, the Commission concluded that the company had violated the union rights of the 19 workers. But when the union called on the local labour department to follow up on the recommendation, the local authorities disregarded the Commission's ruling and ruled in favour of the company.