[Kabar-indonesia] 1 of 2: Indonesia: Annual Survey of Violations of Trade Union Rights (2006)

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-1 of 2-

International Confederation of Free Trade Unions
  (ICFTU) 
June 20, 2006

Indonesia: Annual Survey of Violations of Trade Union
Rights (2006)

Population: 225,300,000 / Capital: Jakarta 

ILO Core Conventions Ratified: 29 - 87 - 98 - 100 -
105 - 111 - 138 - 182

Indonesia faced a wave of factory closures in West and
Central Java, as high energy costs, poor
infrastructure, official corruption, and the end of
the multi-fibre agreement took their toll. Many of the
remaining factories marginalised and broke unions by
exploiting loopholes in the law and weak law
enforcement to increase the use of contract labour.
Government's poor management of the process of
decentralisation of government authority from the
central level to the provinces created confusion, and
fostered collusion between employers and local
authorities to undermine worker rights. High
unemployment and a rapidly rising cost of living, led
by skyrocketing fuel prices, were key challenges faced
by workers. As the year ended, massive worker protests
for hikes in the legal minimum wage underscored the
desperate situation faced by many industrial
labourers.

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 now 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. Failure by district officials to count
PGRI members in their census of union members has
resulted in massive undercounting of PGRI members.
Recently only approximately 116,000 of PGRI's claimed
1.6 million members were recognised. This has
negatively affected PGRI's capacity to operate.

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. While it
remains difficult to strike, it is somewhat less
difficult than under previous legislation and
repressive security practices.

Restrictions on the right to strike

Under the Manpower Act, workers who intend to go on
strike must give written notification to the
authorities and to the employer seven days in advance
for the 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 was signed into law on 15
January 2004, but the government delayed
implementation until 14 January 2006, owing to the

need for additional time for the appointment of judges
and to ensure they received proper training.

The act sets up a new system of tripartite labour
courts as part of the justice system, replacing the
previous system of labour dispute committees. Under
the new law, settlement of industrial disputes is
first to be sought through bipartite negotiation. If
no resolution is reached at this level, a mediator or
councillor 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. The verdict is final if the case involves a
dispute between labour unions, or a "dispute over
interests", defined as a dispute over changes in work
regulations or the collective bargaining agreement. In
other cases, such as dismissals and violations of
rights, an appeal is only acceptable if it is filed
within seven days to the Supreme Court, and that Court
must make its ruling within 30 days.

Labour leaders who become "Ad Hoc Judges" of the Court
must temporarily resign from their positions as
members of labour unions.

TRADE UNION RIGHTS IN PRACTICE

Using contract labour to undermine unions

Unions have been directly affected by the increasing
trend of using contract labour. Rustam Aksam, the
President of the Indonesian Trade Union Congress has
stated that this is "one of the most serious problems"
that is systematically undermining unions in the
country. 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 (hereinafter: 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

Although the decisions of regional and national labour
dispute resolution committees, which judge anti-union
discrimination cases, can be appealed to the State
Administrative Court, legal procedures are long,
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. It remains to be seen whether
the new Industrial Relations Court will solve this
problem.

Collective bargaining

According to the Manpower Ministry, 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. During the Suharto era, the law allowed for
the collection of union dues by local offices of the
Ministry of Manpower, which regularly kept large
chunks, if not all of these dues, for themselves.
Though this legislation has been repealed, it is
difficult to assess whether the practice has in fact
disappeared.

Export processing zones (EPZs)

Despite the fact that the labour laws apply in the
country's seven EPZs, there is generally stronger
anti-union sentiment in the zones.

Police intervention

The police has 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 January 2004, the Jakarta Post reported the then
Minister of Manpower, Jacob Nuwa Wea, as saying that
"if workers are out of order, it's OK for the police
to slap them around a little bit."

However, on 24 March 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,
and uphold human rights", "remain impartial in dealing
with the parties…", "have a principle that all parties
are equal before the law", and finally, "not be
involved in any industrial dispute mechanisms."

While clearly a step forward, at least on paper, it
was clear that despite the best efforts of the ILO and
labour leaders, implementation of the guidelines
remained uneven, particularly outside Jakarta and
other main industrial areas. For example, over 200
police intervened in September to violently break up a
one month strike by the Medan Independent Workers'
Union at PT Shamrock Manufacturing Company in Medan.

VIOLATIONS IN 2005

Background

Indonesia continued to recover from the impacts of the
Asian tsunami, which devastated Aceh province in
December 2004, and made a major breakthrough for peace
by signing a political settlement with Aceh's armed
rebels, the GAM. However, new terrorist bomb attacks
in October against tourist targets in Bali, allegedly
committed by Jemaah Islamiah, caused continued jitters
and punctured a recovery in the tourism industry that
had been underway since the previous Bali bomb attacks
in 2002. During the year, labour leaders strongly
condemned Indonesian President Susilo Bambang
Yudhoyono for being indecisive and not fulfilling
campaign pledges made to improve the situation of
workers.

PT Musim Mas - busting the union, imprisoning the
leaders

The union at the PT Musim Mas plantation and refinery,
based in Riau province, was organised in October 2004
by workers complaining that conditions did not comply
with minimum standards set in the law. When the union
raised demands with management in February 2005, the
response was to fire Robin Kimbi, the chairman of the
Kahutindo PT Musim Mas union. The union's appeal
against this unfair dismissal was denied by the local
branch of the Ministry of Manpower, and later the
provincial Committee for Settlement of Labour
Disputes. The employer next tried to blunt Kahutindo's
efforts by setting up a management-controlled union,
SP Musim Mas, and issuing fake union ID cards with the
names of Kahutindo's members on them. When management
pressure resulted in the unjust firings of four union
officers and forced the resignation of another five
officers, the union took strike action - first in
April and then in August. The local Ministry of
Manpower office finally recognised one of the union's
demands, to require that the company enforce labour
standards required by law in the workplace, but this
instruction was ignored by the company.

The union members signed a petition on 6 September to
the company demanding that the company: a) re-instate
Robin Kimbi and withdraw charges on his dismissal; b)
implement the Ministry's instruction on enforcement of
labour standards; and c) clarify the employment status
of contract workers and ensure they have the same
rights as permanent workers. Management refused to
come to the bargaining table, so a longer strike was
called by the union to start on 13 September.

When the union members went on strike, replacement
workers were brought in, allegedly in collusion with
local officials. On 14 September, company security
guards drove a company truck into the union's picket
line, seriously injuring two workers who had to be
hospitalised. The union filed a formal complaint with
the local authorities, but no action has ever been
taken by police against those responsible for running
over these workers. Yet, when a group of enraged
strikers responded by attacking and pulling down the
company's gate, police immediately used force to
suppress the strike. Police then pressed charges
against six union leaders on trumped up charges of
violence against persons or property. Five union
leaders were detained on 15 September and a sixth
leader was arrested on 18 October on the same charge.
In addition to union chair Robin Kimbi, those
imprisoned include Masri Sebayang (Kahutindo Riau
Regional Secretary) and Syafrudin, Aken Pane, and
Surhaftowo (all union vice Chairmen). If convicted,
these leaders face a potential of up to five and half
years in prison. At year's end, the trial was
continuing and the detained unionists remained in
jail, after having been refused release on bail.

The union's call for an inquiry by the provincial
Parliament was received, and a hearing was held that
excluded the union from its deliberations. Improper
"mediation" between local authorities and PT Musim Mas
management was apparent when the inquiry finished with
a company statement, acknowledged and approved by the
chiefs of the District and Regional offices of the
Ministry of Manpower, stating that the company had
upheld workers' rights in accordance with the labour
laws. The National Dispute Settlement Committee
further approved the company's dismissal of 701
workers without compensation for striking in support
of the union, effective 30 September. The union has
appealed that decision. At year end, the factory hired
local police officers to forcibly evict hundreds of
these workers and their families from factory housing,
despite the fact that the law provides these workers
remain employees of PT Musim Mas until their appeal is
decided.

PT Sinar Apparel Internasional firing union chair

PT Sinar Apparel International, located in Cibitung
near the town of Bekasi (West Java), produces garments
for prominent brands such as Marks & Spencer, GAP and
John Apparel. When a union was organised at the
factory in January 2005, management initially refused
to bargain in good faith, instead pursuing tactics
that included trying to bribe union leaders. When this
tactic failed, PT Sinar management sacked the union's
chairman, Arifin, on trumped up allegations of
violating company regulations. Disputes over late
payment of wages, which led to a one day strike in
October, also resulted in the dismissal of a union

activist, Dedeh. At year end, pressure by the KASBI
(Congress of Indonesia Unions Alliance), supported by
the ITGLWF and international brands sourcing from the
factory, forced the factory to reinstate Arifin, cease
all anti-union harassment, and initiate efforts to
reach a collective bargaining agreement with the
union. However, Dedeh's case remained unresolved at
the end of the year.

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Joyo Indonesia News Service
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