Imprisoning employers in Indonesia

Abstract

FOCUS □ BUSINESSAND HUMANRIGHTS Imprisoning employers in Indonesia The Trade Union Actis generally a paper tiger, withno implementation inpractice SURYA TJANDRA isalaw lecturer atAtma Jaya Catholic University, Jakarta, and Director of the Trade Union Rights Centre, Indonesia Although under tothe the three the authoritarian situation decadesof cannot New union Order be suppression compared regime, Although tothethree decadesofunionsuppression undertheauthoritarian NewOrderregime, stories aboutworkers who formed unions,were deniedtheir rights tocollective bargaining bythe employer, and ended up withthe dismissalof unionleadersand further intimidation on their members, arenotrareintoday'sIndonesia. Despitetheenactment oftheTradeUnionAct No. 21/2000as a special law on tradeunions, whichsupposedlyprotects tradeunionofficials from dismissal due toanti-union conduct, sucha practice is still frequent. One rootcause ofthisis theunions'bargaining position insociety, which remains generally weak. The state'srecognition of unions,at leastformally , following theReformasi in 1998,has not necessarily been followedby employers' acceptanceforunions 'involvement in arranging the dailyissuesintheworkplaces. Sincethereform and relaxation of unionformation regulations in 1998unionshavegrownin numbers from onlyone in early1998to around 100 nationalfederations registered in late 2009, including four national confederations. Indonesia has also become the first country in the Asia Pacific region that ratified allofthecoreconventionsoftheILO ,including Conventions 87 and98 on therights to freedom ofassociation and collective bargaining. However, thelevelofunionisation is relatively lowwithonlysixtosevenpercent uniondensity intheformal sector, whichnumbers areactually decreasingevery year. Fragmentation among unionsand the lack of a strongcentralbody might also contribute to theunfavourable positionofunions . Rightson paper: onlya paper tiger? Nonetheless, on paper,Indonesiantradeunions have some legal basis to meettheirtraditional objectives to improve thepay and conditions of workers. TheTradeUnionAct,forexample,providesthatanygroupoftenworkers mayform a new tradeunion,and workers ofone enterprise mayassociatewithotherworkers in supporting industrial action.A worker mayalso be a memberofmorethanone tradeunion. Now,theActdoes notuse theword'registration 'but 'recording', whichrefers to the legal requirement fora tradeunionto getregistered. Moreover, theAct,byarticle 28,clearly prohibits anti-unionbehavioursuch as termination of employment, demotion, wage repression, intimidationoranti -union campaigns. Indeed,theActconsiders suchconduct toconstitute a 'gravecriminal offence', whichis subject tocriminal sanction ofbetweenone tofiveyears imprisonment, and / or a fineofRp 100million to Rp 500million (approx.9000to 45,000euro). Butitis generally a papertiger, withno implementation inpractice. Generalmanager sent to prison A courtdecisiona yearago to sentence a general manager forviolating tradeunionrights under thelawwas notonlyunprecedented, butforthe workersinvolvedit also signalledthatjustice might workina realsense. On 12January 2009,theBangilDistrict Court in Pasuruan, EastJava,sentenced to 18 months in prison thegeneral manager ofa private company who had signed the dismissallettersof four union leaders.The crimewas violatingtrade union rights. It was the first ever case of an employer beingjailedforviolating thelaw. The SurabayaHighCourtupheldtheverdict, as did theSupreme Court inJune2009According tothecurrent system, inlabourdisputes workers should normallygo to the Manpower and Transmigration Ministry, orto its regional offices, and/or totheIndustrial Relations Court. Butthetwoinstitutions havelittle credibility amongworkers. Labourers regard theMinistry and theCourtas sidingwiththeinterests ofthe employers rather thantheworkers. District courts arean alternative forthem. Yet,thisnewdevelopment mayalsobring new dilemmas.The criminal justicesystem through thecriminal courtcouldnotgivesolutions related to theissuesof dismissal of thefourunion leadersandthecollective bargaining rights ofthe union.Thesepowersbelongtotheother system oflabourdisputesettlement withtheManpower regionalofficesand the PHI as the two main institutions, whichhave been regarded as problematic byworkers. Indeed,it is actually thefailure of thesetwo institutions thathas led theworkers to bring the case to thecriminal processes.Moreover, sucha decisionmayalso enlargethealreadylargedistrustbetween workersand employerswithin industrial relations practice inIndonesia. In a statement to thepressin responseto the Court'sdecision,the employers' associationin the PasuruanIndustrial EstateRembang(PIER) reportedly expressed deep concern: 'Sucha problem shouldhavebeensolved through theindustrial relations law[and not thecriminal law]',theassociation stated, as reported bya localnewspaper inJanuary last year(Duta Masyarakat, January 21,2009). The employers'association also complained about'weak law enforcement' in Pasuruan, and INTERNATIONAL union rights Page 8Volume 17Issue 22010 FOCUS □ BUSINESSAND HUMANRIGHTS calledforthegovernment, and thePresident in particular, toprovidelegal certainty' fortherisks and prospects ofdoingbusinessin Indonesia.It expressedconcernthatthe case mighthave a bad impacton the investment climatein the region. Ina statement justafter thedecisionwas handed downbythejudges,a unionleadersaid: 'Weacceptthedecisionand willmonitor this case wherever itgoes . Wedon'twantthecase tobea boomerang forworkers. We,as workers' representatives, are quite happy with it,and wehopeitwillnothappen again in the future, as thisisa lesson for [labour] law violators'. This indicatesthe unionistshoped the case woulddiscourage anymorerepression ofunion activists. The wish was not to imprisonthe employer, butsimply to gettheemployer's genuinerespect fortheworkers andtheir union. In TheBehaviorofLaw (1976), Donald Black identifies threestylesof social control:'penal style','compensatory style',and 'conciliatory style'. In thecontext ofa disputebetweenworkersandtheir employers, somepeoplemayargue thatthe 'conciliatory style'is perhapsoffering better solution thanthe'penalstyle'. After thedispute...