The law, including related regulations and statutory instruments, in general protects the rights of workers to join independent unions, conduct legal strikes, and bargain collectively. Workers in the private sector have broad rights of association, but the law places restrictions on organizing among public-sector workers. Workers in the private sector formed and joined unions of their choice without previous authorization or excessive requirements. The law stipulates that 10 or more workers have the right to form a union, with membership open to all workers, regardless of political affiliation, religion, ethnicity, or gender. The Ministry of Manpower and Transmigration records, rather than approves, the formation of a union, federation, or confederation and provides it with a registration number.
To remain registered, unions must keep the government informed about changes in their governing bodies. The law allows the government to petition the courts to dissolve a union if it conflicts with the state ideology (Pancasila) or the constitution. A union also may be dissolved if its leaders or members, in the name of the union, commit crimes against the security of the state and are sentenced to at least five years in prison. Once a union is dissolved, its leaders and members may not form another union for at least three years. There were no reports that the government dissolved any unions during the year.
Although the law recognizes civil servants’ freedom of association and right to organize, employees may only form employee associations with more limited rights. Employees of state-owned enterprises (SOEs) are permitted to form unions. There were no cases during the year of employees of SOEs attempting to form a new union.
The right to strike is recognized but substantially restricted under the law. Under the Manpower Development and Protection Act (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. The notification must specify the starting and ending time of the strike, venue for the action, reasons for the strike, and include signatures of the chairperson and secretary of the striking union. The law does not extend the right to strike to most civil servants or to workers in SOEs.
All strikes at “enterprises that cater to the interests of the general public or at enterprises whose activities would endanger the safety of human life if discontinued” are deemed illegal. Although this wording recalls the definition of an “essential industry,” the regulation does not specify the types of enterprises affected, leaving this determination to the government’s discretion. The same regulation also classifies strikes as illegal if they are “not as a result of failed negotiations.”
Before striking, workers must engage in lengthy mediation with the employer and then proceed to a government mediator or risk having the strike declared illegal. In the case of an illegal strike, an employer may make two written requests within a period of seven days for workers to return. Workers who do not return to work after these requests are considered to have resigned.
The law provides for collective bargaining and allows workers’ organizations that register with the government to conclude legally binding collective labor agreements (CLAs) with employers and to exercise other trade union functions. The law includes some restrictions on collective bargaining, including a requirement that a union or unions represent more than 50 percent of the company workforce to negotiate a CLA.
Although most CLAs provide workers with more rights than the legal minimum provisions set by the government, more than a third of employers reportedly violated the terms of the CLA with relative impunity. Enforcement of CLAs varied based on the capacity and interest of individual regional governments.
In practice the government did not effectively enforce laws protecting freedom of association and did not effectively prevent antiunion discrimination. Freedom of association, despite being guaranteed under the law, is undermined by several common practices including the use of contract workers and regular workers on short-term contracts to avoid labor regulations. Employers commonly reassigned labor leaders to disrupt their union building activities. Antiunion intimidation most often takes the form of termination, transfer, or trumped-up criminal charges. Companies increasingly sued union leaders for losses suffered in strikes.
Antiunion discrimination cases moved excessively slowly through the court system, sometimes taking up to six years. Bribery and judicial corruption in workers’ disputes continued, and courts rarely decided cases in the workers’ favor. While dismissed workers sometimes received severance pay or other compensation, they were rarely reinstated. During the year 250 workers at PT Surya Gemilang Perkasa in Kabupaten Bogor, West Java Province, and 700 workers at PT Amerta Indah Otsuka in Sukabumi, West Java Province, agreed to a package with severance pay and wages due rather than reinstatement because after extended disputes with the company they needed the money.
Labor activists continued to claim that companies orchestrate the formation of multiple unions, including “yellow” unions, to weaken legitimate unions.
As of October, the appeal of a lower court ruling to reinstate 30 unionists fired from the Surabaya Zoo in 2010 remained pending, and the union activists had not been reemployed.
In practice the cumbersome process required for a legal strike, as well as the government regulations included in the Manpower Act, provided employers a clear means to obstruct a union’s move to legally strike. Therefore, strikes tended to be unsanctioned or “wildcat” strikes that broke out after a failure to settle long-term grievances or when an employer refused to recognize a union. The primary reasons for strikes during the year were demands for an increase in the minimum wage and the use of contract workers.
Employer retribution against union organizers, including dismissals and violence, continued. Employers commonly used intimidation tactics against strikers, including administrative dismissal of employees through use of the appeals process described above. Some employers threatened employees who made contact with union organizers. Management singled out strike leaders for layoffs when companies downsized.
Following violent clashes between police and strikers in 2011, the union leaders and the management of Freeport Indonesia agreed to a CLA proposal to end the strike at the end of 2011. The agreement stipulated that both sides would work together to achieve a 37 percent wage increase over two years. From October 2011 to September 2012, salaries increased by 24 percent, followed by a 13 percent increase in the year beginning October 2012.
In recent years employers have repeatedly filed criminal complaints against union officers following failed collective bargaining negotiations or lawful strikes. In a number of cases, union officers were prosecuted and even served prison time for destruction of property and interference with profits as a result of complaints brought by employers. Some provisions in criminal law have aided these tactics, such as a crime of “unpleasant acts,” which creates criminal liability for a broad range of conduct. There were credible reports of the police investigating or interrogating union organizers.
The increasing trend of using contract labor directly affected unions’ right to organize and bargain collectively. Under the Manpower Act, contract labor is to be used only for work that is “temporary in nature.” However, many employers violated these provisions, sometimes with the assistance of local offices of the Manpower Ministry. In some cases, companies declared bankruptcy in order to avoid severance payments required by law, closed the factory for several days, and then rehired workers as contract labor at a lower cost. Union leaders and activists usually were not rehired. Labor courts have ruled in favor of workers who filed either for compensation or to be rehired. In most cases, however, the company appealed to the Supreme Court where the labor court’s decisions were overturned.