Indonesia was the first country in Asia and Pacific has ratified all eight core ILO Conventions covering the fundamental principles and rights at work. The circumstance of the ratification was unique for Indonesia, as “consequences” of devastating political, social and economical of the crippling Asian financial crisis (1996) and collapsed of the authoritarian Orde Baru regime. The situation forced Indonesia to adapt its political policies to obtain assistances for recovering its economic, that the institutional dialogue between ILO and Bretton Wood institutions, IMF and World Bank, has significantly played on its important roles. Therefore, I could said that the recovery economic debts as strategic tool of ILO to impose on the promotion of acceptance core ILO standards and to establish principles concerning social dialogue in Indonesia. The IMF and World Bank have traditionally demanded conditionality for their financial assistance programs, which the areas of its cooperation with ILO and Indonesia government include labour-based infrastructure works, industrial relations and labour law, civil service reform and child labour (ILO, 1998).
The most immediate and significant development in the labour field was the ratification of the ILO Convention No. 87/1948 concerning Freedom of Association and the Protection to Organize. This was a milestone to an end a trade union monopoly and restricted rights of workers’ to organize and to collective bargaining. After the ratification of the Convention No. 87/1948, the government has to ratify remaining core Conventions. One matter that became clearer behind the ‘force’ ratification of conventions was the Letter of Intent signed by the Government of the Republic of Indonesia with the ILO on 23 December 1998 regarding ratification of all remaining fundamental human rights conventions (ILO, 1999).
However, the alternation has positive development in the commitment of Indonesia to respect human and labour rights from which Indonesia moving to another phase. But some doubts still linger on; will the political change in terms of respect for human and labour rights be accorded high priority? “Absenteeism of law enforcement culture” is allegedly one of factors raising doubts over the implementation of the conventions. By ratifying conventions, Indonesia must bear consequences to provide necessary labour laws that it’s fully complied with the requirement of the conventions. The laws need to be developed. The laws will provide general guideline in applying the principles of the conventions in national laws and practices in one which must be undertaken at the national level and having regards to national circumstances. But the laws of the land shall not be such as to impair, nor to shall it be so applied as to impair, the guarantees provided for the conventions. However, ILO does not have a power to provide certain nations with a sanction as they, which ratified the conventions, make an infringement. Serious obstacles more than often arise as national regulations are not capable of assuring rights standardized in the conventions for workers to enjoy.
The country context and the labour unions
Indonesia is one of the largest archipelagos in the world that has 17,508 islands, stretching along 3,977 miles between the Indian Ocean and the Pacific Ocean. Indonesia has a total area of 1.9 million square miles including the ocean waters with recent populations is estimated as of 230,632,7000 (BPS, 2009). Indonesia is a democratic country that applies a presidential system and Pancasila (five principles of State philosophy) as the soul of democracy. These state fundamentals were proclaimed by the founding father and first President, Soekarno, on the Declaration of Independence of the Republic of Indonesia on 17th August 1945 (National Portal, 2010)
Of course to build the nation after more than 350 years under colonized by Dutch and 3.5 year under Nippon (Japan) colonization needs a very hard work in all Indonesian; especially after the first years of independence during which Indonesia as a nation must face various obstacles, threats and challenges created by internal and external forces. During its “development periods” the nation also faces challenges in form of for example corruption, separatism, bottleneck in democratic channels and low in law-enforcement. Despite impressive economic growth it has experienced, the size and geographical distribution also poses a challenge on the nation. However, in this context I do not want to explain in details political and economic situation of Indonesia because I want to focus more on the application of the conventions and effective laws. Besides, I want to describe a little bit about trade union in this topic. I will flash back to roles of union during Dutch colonial, at times where labour organizations resurfaced to take part in the 1945-9 armed struggle phase of the independence movement; armed labour unit called lasykar buruh, for example, were involved in defending workplaces against enemy force and were known to have seized foreign-owned production facilities in the nationalist cause. (Hutchison and Brown, 2001). Glassbuner (2007) even says that labour movement in Indonesia has started since 1908 and during the period of independence struggle Indonesian trade unions have been influenced by nationalist aspirations for freedom. Political and ideologist consideration have frequently been more important that economic demands. Political parties at that time ideologically are divided into four clusters: nationalist, religious, socialist and communist, and so are unions at the times because they are parties’ affiliation. However, whatever their ideologies, all the unions has same spirit and motivation that is to get rid of Dutch colonial.
After the independence, Indonesia joined the United Nations body in 28 September 1950 (UN, 2010) and in 12 June 1950 became a member of ILO (ILO, 2010). Labour movements have experienced their best time during the middle of 1950s as reflected in better legal protection for labours such as a stipulation from government states 40 working hours per week in Law No. 12/1948 (during that times some countries applied 44-48 working hours/week), enactment of Law No. 21/1954 on Collective Bargaining, in 1956 and 1957 government of Indonesia ratified two fundamental ILO Conventions: No. 98/1949 concerning Rights to Organize and to Collective Bargaining and No. 100/1951 concerning Equal Remuneration.
SOBSI (Sentral Organisasi Buruh Seluruh Indonesia- Centre for All Indonesian Workers Organization) was the most active and strongest workers organization (Confederation) supported by Indonesia Communist Party (PKI). SOBSI was very influential in nationalize Dutch companies in the dusk of 1950s. However, the demolition over PKI by a coalition of military, urban middle class, and urban and suburban/rural landlords at the end of 1965 erased tradition of unionism political throughout Indonesia and this inheritance continues to hamper workers to organize (Hadiz, 2006). Afterward, transformation of labour movement has dramatically changed from “revolutionary nationalism” (Pillay, 2008) to centralistic period, single entity of FBSI (Federation of All Indonesian Labours). In 1985, FBSI transformed itself into SPSI (All Indonesian Workers Union) and later into FSPSI (Federation of All Indonesian Workers Union). During his terms, President Suharto applied centralistic democracy, interests of middle class and capitalists became priority to sustain stability and political security in order to achieve goals of economic development. Labour must be controlled using military and police forces, freedom to organize were not been barred but labours must joint to KSPSI. New Order regime was a paradise for foreign investors and cronies of domestic capitalists (Heryanto and Mandal, 2004). As Suharto stepped down for his repressive and authoritarian throne in May 1998 because of international monetary crisis and replaced by Habibie, freedom to organize resumed growing and blooming. In line with the ratification of ILO Convention No 87/1948 concerning on Freedom of Association and Protection of the Right to Organize, various unions started to thrive at company level, including in several BUMN (state-owned enterprises). By 2005, over 18,000 plant-level union had been registered to manpower office, many of which were associated with dozens of union federations and three confederations, namely KSPSI (Konfederasi Serikat Pekerja Seluruh Indonesia, former name was FSPSI), KSBSI and KSPI (Broadbent and Ford, 2008). However, from labour movement perspective situation of the workers had not become better because the movement began to fragment into multi-unions. Besides, newspaper often wrote about threat some companies imposed to leave this nation or withdraw their investments. Many labour actions took place during that time and industrial dispute were viewed to obstruct stability and security of economic environment of Indonesia; however, the root of the problems were other bigger factors such as political stability and national security (terrorism, for example; Bali Bomb in 2002), corruption, smuggling etc (Quinn, 2003).
Problems of workers in Indonesia recently are very intense especially ones related to changes in labour market structure involving flexibility of labour. Impact of policy of government intervention to respond economic crisis indeed has strengthened domestic market. However, the enactment of Labour Law No 13/2003 has created controversies because this law implicitly endorses flexible labour market. Policy on minimum wages is considered to slow down economic growth, but in practice this policy is utilized to be maximum wages workers shall get. Feminization of work especially within textile, garment and leather sectors has become a common practice besides contracted system and outsourcing and these phenomenon were prevail in Export Processing Zone (EPZ) such as in Batam and also reflected a marginalization toward workers created by capitalists regime. According to BNP2TKI (Indonesia Agency for migrant worker training and placement abroad) in 2008, around 748,825 Indonesian migrant workers flew out abroad to have better life and 36% of them worked in informal sectors, most of them has been domestic helpers. There are countless violation cases against migrants workers rights happened both in the original hometown, during embarkation such as cheating by agents for migrant workers, and in the destination countries such as assault, wages not paid, unilaterally repatriated. And, sadly, the three big unions above have not taken an action to protect them, Just lucky, labour NGO actively has actively took part in advocating Indonesian migrant workers abroad.
ILO and the Conventions ratified by Indonesia
As said above, Indonesia is member of ILO since 12 June 1950. The ILO legitimacy is based on its tripartite structure that brings together representative of government, employers and workers that promoting social justice and internationally recognized human and labour rights. The organisation continues to pursue its founding mission that labour peace is essential to prosperity (ILO, 2010). The mission was redefined in ILO Declaration of Philadelphia, 1944. The Declaration was also a “gate” and “blueprint” for UN Charter and Universal Declaration of Human Rights. ILO is the global body responsible for drawing up and overseeing international labour standards, Conventions and Recommendations (ILO, 2010). The ILO Conventions are international treaties, subject to ratification by ILO member states. The ILO has adopted about 188 ILO Conventions and 199 Recommendations (ILOLEX, 2010) covering all aspects of the world of work. These international labour standards play an important role in the elaboration of national laws, policies and judicial decisions, and in the provisions of collective bargaining agreement. Indonesia was the first Asian country and the fifth country in the world to ratify all fundamental Conventions. Since becoming a member in 1950, Indonesia has ratified a total of 18 conventions (ILO and Depnakertrans, 2010).
Freedom of Association and the effective recognition of the right to collective bargaining
Ratification of ILO Convention No 87/1948 has been a stepping-stone for freedom to organize and protection of the right to organize in Indonesia. However, there is still critics in responding of the ratification noted that critics on how the ratified only by presidential decree No. 83/1998 not law as higher under the hierarchy of legislation in Indonesia. ILO Convention No. 87/1948 aimed at providing an assurance for both workers/labours and employers of freedom to establish and be a member of their organization, for the advancement and certainty of interests of their workers without government involvement. The government has welcomed the ratification by enacting Trade Union/Labour Union Act No. 21/2000. The Act guarantees: (1) workers rights to establish and become members of unions; (2) unions’ rights to function in order to protect, defend and improve the welfare of workers and their families, and; (3) the protection for workers against acts of anti-union discrimination and interference. The Trade Union/Labour Union Act allows workers in the workplace to organize (article 5 (1)), but trade unions have to register with the ministry of manpower in order to be recognized (article 18 (1). At least ten members are required to form a union. Trade unions can be formed across sectors and nationwide. The union has to keep the government informed of nominations and changes in their governing bodies. According to this Law, civil servants have the right to organize but this right is restricted, article 44 proclaims that civil servants shall enjoy freedom of association and that the implementation of this right shall be regulated in a separate Act. Such an Act has not been adopted yet. Substantively, this law is discriminative because there is differentiation in regulation on right to organize and freedom of association. Related to this matter, we could urged that shall there be no regulation for civil servants to organize, article 44 (1) of the law and ILO Convention No 87/1948 can be used as referent. However, in practice civil servants could not enjoy right to organize and, therefore, it is needed to ratify ILO Convention No 151/1978 concerning protection of the right to organize and procedure for determining condition of employment in the public sector “Public employees shall enjoy adequate protection against acts of anti-union discrimination in respect of their employment (article 4 (1))”. This convention (Article 7) regulates right to negotiate in determining terms and conditions of employment between public authorities and public employees’ association. Besides, Trade Union/Labour Union Act also marginalizes or is not able to satisfactorily guarantee provisions stipulated in Convention regarding steps to be taken to provide protection for particular worker categories such as domestic helpers and other workers in informal sectors such as in agriculture and migrant domestic workers (maids), despite article 1 (6) of Labour Union/Trade Union Act explicitly states definition of worker/labor as person who work for salary/wages or remunerations in other forms. The definition refers to article 2 Convention 87 which states that workers, without distinction whatsoever, shall have the right to establish and to join organization on their own choosing without previous authorization. Therefore, the law indirectly prevents particular categories of worker to establish or joint with union. However, the impact of the new freedom of association environment on the development of trade unions is considered, hence, it is clear that workers are facing a transition from the experience of repression to face the very different challenges of operating in a more open industrial relations environment but the government still wants to influence.
ILO Convention No. 98/1949 aimed at providing protection for workers who are exercising the right to organize; non-interference between workers’ and employers’ organizations; promotion of voluntary collective bargaining. The objective is reinforced in article 4 (1) Trade Union/Labour Union Act states that ‘Worker/labor union is aimed at providing protection, advocate for rights and interests of and improving decent welfare for worker/labor and their family”, and the implementation of collective bargaining agreement is regulated in chapter seven of Manpower Act No. 13/2003. A problem over the union however, is that collective bargaining require union recognition and representation’ as stated at article 119 (1) of the Manpower Act that… the only trade/labour union in the enterprise shall have the right to represent workers/labourers in negotiating a collective labour agreement with the employers provided that more than 50% (fifty percent) of the total number of workers/labourers who work in the enterprise are members of the trade/labour union. This provision is against spirit of freedom to organize as stated in Trade Union/Labour Union Act article 5 (2) that workers have the right to form and become members of a workers’ union/labour union, each union must have at least 10 workers. This situation is fragile for union busting.
Right to strike, full freedom of association means also include the right to strike. Strike is an intrinsic corollary of the right to organise protected by the ILO Convention No. 87/1948 but it does not explicit mention the right to strike. Strike is essential element of trade union rights and recognized in most countries as one of the essential means through which workers and their organizations may defend their economic and social interests. Manpower Act regulates workers rights to strike. Strike is protected by this law ‘Nobody is allowed to prevent workers/labourers and trade/labour unions from using their right to strike legally, orderly and peacefully (article 143 (1). However article 140 (1) states that Within a period of no less than 7 (seven) days prior to the actual realization of a strike, workers/ labourers and trade/ labour unions intending to stage a strike are under an obligation to give a written notification of the intention to the employer and the local government agency responsible for manpower affairs. Therefore, Uwiyono (2001) says that almost 99% labour strike in Indonesia is illegal referring to the Law, because most of the strike never follows the procedure as stated under the article 140.
Elimination of all form of forced labour or compulsory labour
Forced labour can be found in all histories and there is a possibility the practice is still going on in other forms because of business interests that sideline rights and dignity of human being. Forced labor can fertilize poverty and prevent the execution of other human rights such as freedom to organize and freedom from discrimination. Conventions regulates the elimination of forced labor are ILO Convention No 29/1930 ratified during Dutch colonial on March 31, 1933, ,Ned.Stbl.No.26, 1933 jo Ned.Stbl. No.236, 1933 and declared effective in Indonesia through Stbl. No. 261, 1933 and ILO Convention No. 105/1957 concerning Abolition of forced labour ratified through Law No. 19/1999. Although not easy to find phenomena of forced labor as in India, bondage labour is very possible to trap woman and children. For example, in order to prevent Indonesian domestic migrant workers in Singapore from running away, they work without pay for months to settle debts to employment agency, the employers keep maids’ passport and work seven days a week and have no rest days in a week (Human Rights Watch, 2005). Domestic workers are isolated and vulnerable, especially those who are live-in with their employers. They are dependent on the good or bad will of their employers. Government firmly acknowledges that Indonesia domestic migrant workers are heroes for foreign exchange while at the same time close one of its eyes over exploitative actions. And they are under category of worker sidelined according to Manpower Act and Labour Union/Trade Union Act.
Effective abolition of child labour
ILO data from 2007 show that of the 1.1 million Indonesian working children under the age of 14, 40% or 4,400,000 are girls. Of this number, an estimated 40,000 to 70,000 are victim of sexual exploitation (The Jakarta Post, 2009). Children are national asset, generation for a nation. Protection for them is necessary in order to reach social justice and universal peaceful. Child labor is against all efforts to thrive abilities in a child as human being, against universal values related to decent work and human dignity, and can very impede poverty eradication. Child labor severely affects health and education of children, and more than often causes to child death. Conventions regulate abolishment of child labor are ILO Convention No 138/1973 (ratified through Law No 20/1999) and ILO Convention No 182/1999 (ratified through UU No 01/2000)
Manpower Act firmly states that employers are not allowed to employ children (article 68), but article 69 (1) provides definition that children aged between 13 (thirteen) years old and 15 (fifteen) years old for light work to the extent that the job does not stunt or disrupt their physical, mental and social developments. The main reason for children to work is poverty; number of population under poverty line in Indonesia in 2006 is 39.05 million and 63.41% of them lives in rural (BPS, 2006). Their parents’ poverty has forced children to drop out school and to work. ILO together with the government in 2001 established a National Committee on the Elimination of Worst Forms of Child Labour with different key partners including trade unions. For example with ministry of education and PGRI (Teacher Association of the Republic of Indonesia (union for teacher)) having a campaign on ‘Education: The Right Response to Child Labour’. Anyway, Indonesia has a target to achieve Millennium Development Goal 2015 that all children, boys and girls, must complete a compulsory school (UNDP, 2005). To fight against child labor cannot depend only on prohibit them to enter workforce. In contrast, within social, economic and politic context, government should have a strong will to protect rights children have as a part of human rights, as defined in article 1 (2) Law No. 23/2002 concerning Child Protection “for them to live, thrive, develop, and participate optimally according to dignity of human being, and to have protection from abuse and discrimination”.
Elimination of discrimination in respect of employment and occupation
ILO Convention No 100/1951 ratified through Law No. 80/1957 concerning equal remuneration among man and woman workers aimed at necessitating ratifying states to take steps to advance and assure the execution of equal remuneration principles for equal work. This is related directly to issues of poverty reduction and development. Increasing income in woman is very likely to be utilized in increasing investment in child health and education.
ILO Convention No. 111/1958 ratified through Law No. 21/1999 is concerning discrimination employment and occupation. This convention is intended to promote equal opportunity and treatment to end all forms of discrimination in work opportunity and employment. Discrimination in access to work training, employment and special work, and requirements and conditions of work must be ended. This convention is reinforced through Law No. 7/1984 concerning Elimination All Forms of Discrimination against Woman. This is related to ILO Convention No. 183 concerning Maternity Protection for which Indonesia has yet no ratified that woman rights in workplace, her social rights, and her reproduction rights need to be protected and assured. Recently, according to Manpower Act, article 82 (1) ‘that Female workers/ labourers are entitled to a 1.5 (one-and-half) month period of rest before the time at which they are estimated by an obstetrician or a midwife to give birth to a baby and another 1.5 (one-and-a-half) month period of rest thereafter, and under article 84, they, shall receive her wages in full.
Indonesia is also one of countries ratifying Beijing Platform of Action for Woman (Beijing Platform of Action for Women, 1995). The conference was held in 4-15 September 1995, and was a fourth woman world conference. The conference that had Equality, Development, and Peace as its theme produced a number of recommendations needs to be carried out by UN member countries in order to improve woman access to and control over economic resources, politic, social and culture. All the recommendations and results of the conference are written in Beijing Declaration and Platform for Action. And this would give a better bargain position for woman workers.
The ILO legitimacy is based on its tripartite structure that brings together representative of government, employers and workers. In some countries, trade unions are not recognized as legitimate organizations or actors in the eyes of the state or employer. However, through ILO conventions, trade union may turn to legitimate. ILO Conventions are respectful and definitely recognize trade union as the main defender organization of workers. ILO conventions are ones of the norms of international law at international level. Moreover, once these conventions are ratified by the state, ILO Conventions offer international legitimacy for trade unions especially in the cases of conflicts among social partners. June 2008, ILO adopted the Declaration on Fundamental Principles and Rights at work. The declaration commits Members States to respect and promote principles and rights in four categories, whether or not they have ratified the relevant Conventions. Indonesia is equally obligated as do the other countries to respect for and promote the declaration because it has been ILO member since 1950. Anyhow, ILO is still a government driven institution due to the process of selection of the worker and employer representatives. However, ILO could give trade union more international legitimacy to play a central role in the process of defining standards. Besides, ILO is still in pivotal position in setting up international labour standards despite its conventions looks like a soft law for no embedded sanctions. In spite of its ‘soft law status’, standards/conventions ILO set up may give more benefits than hard law for they can build common understanding by creating norms that are recognized by everyone without necessity of any sanction.
In this paper, especially in description of the conventions I do not give detail reviews of union roles in implementation of the conventions. As main actor in social dialogue/tripartite system, union shall need to be review deeply, but I prefer to say that roles of union in Indonesia are still traditional or revolve merely around improvement in working conditions. Besides, there are still many union-busting cases making workers do not really enjoy rights to organize in workplace (union density in Indonesia is about 4-6%). I would also like to say that the strength of union at nation-scale is low and fragmented, and this in turn means that union has abandoned spirit of collectivity. Standing alone, union will not be able to do assessment of the implementation of the conventions. Even though there are some improvements in protection of worker rights, violation cases against them are also abundant (despite no directly report). When there is a report on the violation, the report is most likely reported by Global Union Federations. Low level of law enforcement becomes skeptical reason for not reporting the violations besides reporting processes to ILO take a long time. Even if the violations is evidence there is no sanction imposed to government or employers. For government itself, ratifying ILO Core Conventions and providing regulations submit to them are like just a job need to do according to letter of intent they agreed. Therefore, strong representativeness in this tripartite institution is very crucial for balance in social dialogue to achieve universal lasting peace based upon social justice and equality.