2007 Annual Survey of violations of trade union rights - Indonesia
|Publisher||International Trade Union Confederation|
|Publication Date||9 June 2007|
|Cite as||International Trade Union Confederation, 2007 Annual Survey of violations of trade union rights - Indonesia, 9 June 2007, available at: http://www.refworld.org/docid/4c52ca2937.html [accessed 28 May 2017]|
|Disclaimer||This is not a UNHCR publication. UNHCR is not responsible for, nor does it necessarily endorse, its content. Any views expressed are solely those of the author or publisher and do not necessarily reflect those of UNHCR, the United Nations or its Member States.|
ILO Core Conventions Ratified: 29 – 87 – 98 – 100 – 105 – 111 – 138 – 182
Union activists faced arrests, beatings and unfair dismissals during the year. Six trade union leaders at the Musim Mas palm oil company were sent to prison on trumped up charges, four of whom remained in jail at year's end. Employers appear to be able to ignore the law and court rulings with impunity.
Trade union rights in law
Private sector workers are by law free to form unions and draw up their own rules. Under the Trade Union Act, adopted in 2000, it is mandatory for unions to register with the Manpower Ministry in order to be recognised. They are required to have at least ten members and there can be more than one union at a workplace. Furthermore, 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: A court can dissolve a trade union if its basic principles conflict with the 1945 Constitution or with the "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 for three years.
The law makes state interference in the internal affairs of the trade unions legal. The unions have to keep the government informed of nominations to, and 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 recruit more than 50 per cent of the total workforce in the establishment, or must receive more than 50 per cent 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.
Teachers: Teachers mainly belong to the Teachers' Association (PGRI), which has been registered with the Ministry of Manpower at the national level as a trade union. However, because of the Decentralisation Law (Law 22/1999), PGRI branches at the district level must also register as unions with local Ministry officials to receive legal status. Based on Suharto-era arrangements, the Indonesia Corps of Civil Servants (KORPRI) also claims PGRI as an affiliate and has sought to maintain an automatic dues' deduction from teachers' salaries, despite a national PGRI decision to distance the organisation from KORPRI. Resistance from KORPRI, combined with confusion and corruption by local Manpower authorities, has been a consistent barrier to local level PGRI union registrations.
Following the filing of a lawsuit by PGRI to try to compel the government to comply with its constitutional responsibility to spend 20% of the government budget on education, the Ministry of Manpower cut off all communications with PGRI and began supporting three small non-PGRI teachers' unions.
The 2003 Manpower Act: The Manpower Act meets many, but not all, of the ILO standards on fundamental human rights at work. Notably, it still does not comply with the child labour conventions. Section 106 of the 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. It requires that the institution be registered with local government authorities. The role of these institutions overlaps with the representative role of unions.
The Act includes a specific statement on the right to strike, the use of outsourcing and contract labour (now being abused with impunity by employers), a clause on the payment of wages during strikes over "normative" issues (management policy and a right guaranteed by law or a collective bargaining agreement), a prohibition on replacement workers during legal strikes and higher pay if a worker is suspended during the labour dispute process.
Restrictions on the right to strike: Under the Manpower Act, workers must give written notification to the authorities and to the employer seven days in advance for a strike to be legal, specifying the starting and ending time of the strike, venue for the action, 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, beginning with bipartite bargaining 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. Such appeals are commonly used by employers as intimidation tactics against strikers.
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, which has held that strikes may only be restricted where there exists "a clear and imminent threat to the life, personal safety or health of the whole or part of the population".
The Industrial Relations Disputes Settlement Act of 2004: The Industrial Disputes Act did not go into effect until 14 January 2006, to allow for the appointment of judges and to ensure they received proper training.
The Act created a new system of tripartite labour courts. Settlement of industrial disputes is first to be sought through bipartite negotiation. If no resolution is reached at this level, a mediator or conciliator can be brought in within 30 days. If that too fails, the dispute can be brought before the Industrial Relations Court and a verdict should be issued within 50 working days of the first hearing of the case.
During the first year of implementation of the Industrial Courts, labour unions continued to complain that the major intended consequence of the Courts, to root out corruption in the dispute resolution process, was not met.
Trade union rights in practice
Using contract labour to undermine unions: Unions have been directly affected by the increasing trend of using contract labour. 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 and Transmigration (hereafter: Ministry of Manpower), as a means of reducing labour costs and eliminating unions. Typically, companies 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 in the union are usually not re-hired. Employers have done so with the apparent approval of both Provincial and Central Committees for the Settlement of Labour Disputes.
Anti-union discrimination: According to the Indonesian Prosperity Trade Union (KSBSI), 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 claim that strike leaders were singled out for lay-offs when companies downsized their workforce.
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.
Justice slow and not guaranteed: 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.
Collective bargaining: According to the Ministry of Manpower, about 25 per cent of companies with over ten employees have collective bargaining agreements. However, in reality these agreements rarely go beyond the legal minimum provisions set by the government and often result from employers unilaterally drawing up agreements and presenting them to workers' representatives for signature rather than negotiation.
Strikes: The legally-mandated mediation procedures which must be followed before calling a strike are so lengthy that they are almost never adhered to. As a result, strikes tend to be wildcat strikes that break out after the failure to settle long-term grievances or when an employer refuses to recognise a union.
Dues: There is no indication in the legislation as to whether management should play a role in collecting dues. Trade unions regularly have problems persuading employers to deduct dues directly from workers' salaries.
Export processing zones (EPZs): Despite the fact that the labour laws still apply in the country's seven EPZs, there is generally stronger anti-union sentiment in the zones. Muhammad Lufti, the Chairman of the government's Investment Coordinating Board (BKPM), publicly stated in June that his organisation has plans to create Special Economic Zones on the three major islands of Riau Island province. He added that "potential investors are very concerned about the union issue, and the huge cost of paying compensation to dismissed workers. We are now exploring the possibility of relaxing the implementation of the labour legislation in the SEZs." However, no further action was taken to implement those plans during the year.
Police intervention: The police have a long history of intervening in workers' demonstrations and strikes at the behest of employers. Violence is not unusual. Labour activist, Dita Sari, says they are often supported by militias or thugs who are hired by the employers. The police claim it is these thugs who are responsible for the violence.
In 2005 the Indonesian National Police officially issued a regulation entitled "Guidelines on the Conduct of the Indonesian National Police in Handling Law and Order in Industrial Disputes." Developed by the police with the support of the ILO, the Ministry of Manpower, and trade unions and employer associations, the guidelines limit police involvement in such disputes to the maintenance of law and order. The guidelines further provide that police shall "act in professional and proportional manner, uphold human rights" and finally, "not be involved in any industrial dispute mechanisms."
While clearly a step forward, at least on paper, implementation of the guidelines remained uneven, particularly outside Jakarta and other main industrial areas.
Violations in 2006
Police violence and firings at PT Cipta Mebelindo Lestari: Members of the "SBSI 1992" union at the PT Cipta Mebelindo Lestari furniture factory went on strike and launched a series of public demonstrations in March to publicise the company's continued violations of the labour law and failure to pay the minimum wage during the previous two years. On 6 March, the Deputy Chairman of the union, Junius Nakhe, was beaten and slashed by thugs hired by factory management. The police declined to make arrests despite the fact that the union was able to identify the attackers. In April, factory management started firing union activists among the workers, and laid off 447 of the factory's 800 workers. On 31 July, Samsir Hasibuan, a union member, was shot by the police in the knee. Police claimed that Samsir was shot while destroying property in front of company gates, but eyewitnesses from the union state they saw police enter Samsir's house, drag him out, and shoot him. After being shot, Samsir was arrested and kept under detention at the hospital until he was transferred to jail on 12 August. He and two other union members, M. Ridwan and Kamiso, who were also arrested on 31 July were charged with destroying company property.
PT Musim Mas – busting the union, imprisoning the leaders: Five trade unionists on trial on charges stemming from a strike and demonstration in September 2005 at the PT Musim Mas palm oil plantation and refinery in Palalawan were declared guilty and sentenced by the court on 3 February 2006. SP KAHUTINDO PT Musim Mas Union Chairperson Robin Kimbi and KAHUTINDO Riau Province Regional Secretary Masry Sebayang were sentenced to two years' imprisonment. Union leaders Suyahman, Safrudin, and Akhen Pane each received one year and two months. Sruhas Towo, who was arrested a month after his colleagues and tried separately, was sentenced on 17 March to 14 months in jail.
The Kahutindo PT Musim Mas had faced a gauntlet of anti-union tactics by management, including the firing of its leaders, management support for a yellow union, use of replacement workers, and finally, violence against the union pickets during the September 2005 strike by company security guards who drove a truck into the picket injuring two members. Responding with alacrity to a complaint filed by Musim Mas management about damage to the factory gate, the local police then arrested the six union leaders on trumped up charges of crimes against public order.
At no point during their trials did the prosecutors attempt to prove, or did the judges find, that they came into contact with the factory gate.
The fired members and jailed leaders of the union were compelled, with no wages or even housing, to accept a Musim Mas management settlement in June. Significantly less than the legally mandated severance pay was provided to 211 fired workers, in exchange for which the union leaders gave up their appeals of their sentences, the fired workers dropped their case against unjust firing, and the union was forced to call on the Building Workers' International (BWI) and the International Union of Foodworkers (IUF) to drop a complaint filed with the ILO. A PT Musim Mas representative was nominated as an employer delegate to International Labour Conference in June to present the outcome of the dispute as evidence of the efficacy of the Indonesian industrial relations system. Neither the BWI nor the IUF agreed to retract the complaint to the ILO. The ILO requested the government to conduct an "independent investigation into the circumstances under which the settlement with the imprisoned union leaders was reached." However, this and the other ILO recommendations were largely ignored by the government.
Robin Kimbi and Masry Sebayang remained in jail at year's end. However, the remaining four union leaders were released in October 2006 after receiving a standard 'holiday remission' from the government for the Muslim holiday of Idul Fitri.
Sugar workers union faces employer onslaught: The Federation of Independent Tobacco, Cane and Sugar Workers (FSPM TG) has been the subject of a continuing campaign to destroy the federation. The ILO Committee of Freedom of Association made a series of comprehensive recommendations in June 2006 which the Government of Indonesia has refused to implement.
The duress of the anti-union campaign has had a direct impact on the health of the sacked FSPM TB President, Daud Sukamto, who has suffered three heart attacks since the FSPM TG was founded. As a result he has been temporarily unable to conduct his trade union work. Meanwhile, the 24 unions that initially joined the FSPM TG face concerted campaigns of harassment from management and their former labour federation. At the Gempolkrep Sugar Mill, police were called in by management to intimidate union workers. Management at this and two other mills identified workers involved in union activities, and retaliated by not calling them to work when the milling season started. In other mills, workers identified as local union leaders have received punitive transfers to remote areas, far from their members. At the PTPN XI mill, management forced workers to swear a religious oath not to join the FSPM TG affiliated union.
At year's end, Daud Sukamto's appeal for reinstatement at the Gunung Madu Plantation, from where he was sacked in March 2005, was awaiting consideration by the Indonesian Supreme Court.
Kompas points towards trade union violation – fires senior union leader: On 8 December, Kompas, the largest daily newspaper in Indonesia, fired Bambang Wisudo, a veteran reporter who is the Secretary of the Kompas Trade Union. Wisudo was one of the founders of the union after the fall of Soeharto, and over the years, he had also consistently fought company regulations and policies that disrupted reporters' professionalism and reporting standards. Just two months before his firing, Wisudo had succeeded in concluding a hotly disputed collective agreement with management over profit-sharing for Kompas employees. In retaliation, management engineered a punitive transfer to punish Wisudo, planning to send him to Maluku province in the farthest reaches of eastern Indonesia, over 1,000 miles from his home in Jakarta. At the same time, the Chairman of the union was transferred to Padang, West Sumatra, the opposite side of the country. When Wisudo refused the transfer, and began distributing leaflets in opposition to management's action, company security guards forcibly removed him to a holding cell, where he remained for several hours until Kompas Editor-in-Chief, Suryopratomo, delivered a letter firing him.
Securicor/G-4 refuses to reinstate fired unionists: Anti-union harassment continued at Securicor/Group 4 Falk in Jakarta where hundreds of union members were dismissed in May 2005 after a strike over terms and conditions. In June 2006, the Supreme Court ruled in favour of the reinstatement of 262 fired workers, but Securicor management refused to comply with the ruling. Finally, after six weeks of delays, in July Securicor settled the dispute by paying all the aggrieved workers the legal severance pay plus an additional 11 months of back pay covering the period of the strike. There were no reinstatements.
Ministry of Manpower, Labour Court complicit in PT Panarub refusal to reinstate union leaders: PT Panarub refused to comply with a finding issued by the Indonesian National Human Rights Commission on 31 May which stated the company's dismissal of 33 top leaders and activist members of the Perbupas union was contrary to the labour law and the Indonesian Constitution. The Regional Ministry of Manpower agreed to allow the dismissal to proceed despite the fact that the Ministry's finding did not find any evidence of 'gross wrong-doings'. The Central Labour Court promptly upheld the Ministry's ruling, the day after the case was filed.
PT Fumira refuses to recognise the union, fires leaders: Forty-five union members, including the local union Chairman and Secretary were fired on 1 November at P.T. Fumira, a metal sheet manufacturer in Bekasi, Indonesia which is a joint venture of Nippon Steel Corporation, Mitsui & Co. Ltd, and an Indonesian company, P.T. Ragam Logam. Management refused to recognise the local union after it affiliated with the Indonesian Metalworkers Trade Union (FSPMI), an affiliate of the International Metalworkers Federation. The company also refused to negotiate a collective agreement and penalised workers by unilaterally cutting by 30 per cent a legally required annual holiday bonus. The company failed to follow legally required procedures for advance notice to employees and the labour court, and subsequently refused to comply with a decision by the district manpower office stating that the workers must be rehired.
Firing workers conducting a legal strike: The P.T. Tunggal Sila Farma pharmaceutical factory retaliated against 158 union members after they started a legal strike on 30 May. Management immediately suspended all the strikers and subsequently filed a request with the Labor Court to terminate them. The workers, who are members of the Indonesian Pharmaceutical and Healthcare Workers Union – Reformed (FARKES/ITUC/PSI) began their strike after management refused to guarantee current working conditions after a planned merger with the Swiss company DKSH Health Care. Although the union followed all required procedures the company claimed the strike was illegal and dismissed the strikers. The local government Manpower Office initially advised the company that it agreed the strike was illegal, but after receiving all documentation from the union reversed its advice and stated that the strike was legal.
PT Sanyo fires union leaders: Over 2,000 workers at PT Sanyo Indonesia, a subsidiary of Sanyo of Japan, went on strike in August to protest the termination of three of the union's leaders. The company fired the union leaders for unspecified disciplinary infractions, but in fact the leaders were singled out for retaliation because they led a demonstration in April demanding higher pay – going back on the word of the company's management, which had previously agreed not to punish anyone in connection with the April demonstrations. The company refused to comment on the terminations of the union leaders, but threatened to punish any workers participating in the August strike.
PT United Can Company (PTT UCC) destroys union just as it registers: The PTT UCC factory outside of Jakarta produces cans for Coca-Cola and other soft drink manufacturers. PTT UCC management fired the 12 union leaders of a newly formed union, PTP GSBI, after it was formally registered at the Ministry of Manpower. The termination letters given to the 12 leaders cited "distributing union literature" as the reason for the firing, a clear violation of the anti-union discrimination protections in the labour law. Management continued to refuse to recognise PTP GSBI or bargain with it. Facing years of challenges in Indonesia's industrial courts, the 12 unemployed union leaders recognised they had no way to survive economically and provide support to their families. Under duress, they ultimately abandoned their effort to secure reinstatement and agreed to receive severance pay.
KSBSI alleges widespread anti-union firings and intimidation: In October, the KSBSI met and filed complaints with the Minister of Manpower, Erman Suparno, alleging systematic anti-union discrimination (consisting of intimidation, punitive transfers, suspensions, and firings of KSBSI trade union leaders at the plant level) in 20 different companies. Particularly singled out for attention was the US energy giant, PT Freeport McMoran which fired a SBSI trade union leader at its Timika plant, and PT Kiani Kertis, a pulp and paper company, whose spokesman admitted calling 63 members of the mobile police brigade in response to KSBSI protests against the company's refusal to recognise and bargain with the union.