Freedom of association/ Dismissal/ Reference to international law to strengthen a decision based on domestic law

The claimants had been dismissed, and argued that the grounds for the termination of their contracts were their decision to create a trade union. The claimants also argued that, since the date of their dismissal, they had been denied entry to the hotel to carry out trade union activities, and that the hotel had demanded that employees who were members of the trade union leave the union or face dismissal. Based on the above, the claimants requested compensation for their unfair dismissal, and that on overturning their dismissal the hotel should be ordered to pay all wages and benefits not received from the date of their dismissal to the date of the ruling.

In their defence, the hotel argued that the dismissals of the claimants had been motivated by the need to make staff cuts, and that their reason for not recognizing the trade union was that they had never authorized its creation.

The Court of Industrial Relations indicated that the creation of a trade union and the decision to join a trade union were independent and fundamental rights of workers whose exercise did not require permission from employers. The Court also underlined that:

“In Indonesian and international law, freedom of association and the performance of trade union activities are a fundamental right of workers and employers. This fundamental right is enshrined in Articles 2 and 3 of ILO Convention No. 87, which was ratified by the Indonesian government [...] as well as in Article 1 of ILO Convention No. 98, which was ratified by means of Law 18 of 1956.”²

The Court considered that the hotel’s refusal to allow the constitution of the trade union was a breach of the right to freedom of association, disregarding Law 21/2000 on trade unions, as well as international law. The Court also maintained that the dismissal of the claimants lacked justification, since the hotel had not been able to prove that there were grounds for the termination of the contracts other than the workers’ membership of the trade union. This fact constituted a breach of article 28 of Law 21/2000, which prohibits all acts obstructing the right to freedom of association, including contract termination.

Making use of ILO Conventions Nos. 87 and 98 to strengthen its decision, the Court ordered the hotel to pay compensation to the workers for their unfair dismissal and pay the wages and other benefits not received from the date of dismissal to the date of notification of the ruling.