Constitutional Court held advanced trial of two cases, namely Case No. 67/PUU-XII/2013 and 69/PUU-XII/2013, Wednesday (28/8). At this meeting the Government and the Parliament gave testimony against the petition filed by Petitioners. Applicant Case No. 67/PUU-XII/2013 filed among others by Otto Geo Diwara Purba, Syamsul Bahri Hasibuan, and Eiman. Meanwhile, Applicant Case No. 67/PUU-XII/2013 filed by Jazuli , Anam Supriyanti, and Wariajo .
Director General of Industrial Relations Labor and Social Security, Irianto Simbolon representing the Government read information in Case No.69/PUU-XII/2013. He delivered it was not appropriate if the applicant does not dispute the provisions of Article 160 paragraph (3) Labor Law . Precisely because such provision has been providing protection and balance the rights of workers / laborers who are stuck criminal cases.
Simbolon explained that the objections of the Petitioners with regard to the granting of authority to the employer to terminate the employment (PHK) without permission after the workers / laborers are not doing their duty for more than six months is set up such that when a worker / laborer and worker found not guilty / layoff the workers did not receive worker / workers may file a lawsuit to the Institute of Industrial Relations Settlement to claim their rights to obtain compensation for damages, both material and immaterial within a period of one year from the decision of a competent court and have legal effect binding or inkracht van gewijsde.
Simbolon also provided information related to the provision of Article 160 paragraph ( 7 ) Labor Law which states that the employer shall pay to the workers / laborers who were laid off as referred to in paragraph ( 3 ) and paragraph ( 5 ) , gratuity one of Article 156 ( 3 ) , and compensation according to the provisions in Article 156 ( 4 ) . Simbolon ensured that layoffs kind referred to in Article 160 paragraph (7) is due to workers / laborers layoff detained by authorities during / up to six months in a row because of the criminal proceedings and therefore cannot carry out the work as appropriate (Article 160 paragraph (3)).
Then, in relation to the rights of workers / laborers post- employment under Article 160 paragraph ( 7 ) , the Simbolon said worker / laborer is entitled to gratuity one of Article 156 ( 3 ) and compensation in accordance Article 156 (4). "Terms of the right amount of wages and termination mechanism is without permission, and the rights of workers / laborers working relationship after finishing only get gratuity and compensation given and done for workers / laborers in the process detained by the authorities. In this regard , according to the government has been very fair and humane when a worker / laborer is detained by the authorities and cannot perform duties / obligations to provide performance counter the results of agreements on labor and / or company regulations / collective bargaining. So it should not be entitled to on wages in accordance with the principle of no work no pay. Nevertheless, the law gives the award in the form of assistance to the family concerned, gratuity, and compensation," said Simbolon.
Meanwhile, according to the government, objected stating that the applicant why the workers / laborers who commit crimes and are being processed by the authorities are not given severance pay in accordance with Article 156 ( 2 ) is a logical consequence of the criminal act of an employee / workers.
Based on the explanation above, the Government asserts that the petition actually already been decided even if Court that there is a difference in the touchstone of the 1945 Constitution, the difference is basically the same . "Therefore, according to the Government along with the petition related provisions of Article 162 paragraph (1) and paragraph (2) is to be ne bis in idem. In other words, the constitutionality of the provisions of Article 162 paragraph ( 1 ) and ( 2 ) has been tested," Simbolon firmed.
Meanwhile, Director of Litigation Ministry of Law and Human Rights Mualimin Abdi read information from the Government for 67/PUU-XI/2013 case. He delivered within a company is declared bankrupt by the decision of the bankruptcy court authorized the commercial court in this case, the management of the company or bankrupt debtor switch from the directors to the curator or supervised by a superintendent who was appointed as a judge in the commercial court.
"In principle, the fulfillment of the rights or obligations of payment to the debtor, the creditor should be done separately and a separate secessionist or separatist nature, and precedes the other creditors, including the holders of privileged creditors, and the creditors compete. That is, the position is in the secure creditor preferred creditor because they have collateral material that otherwise separate or separatists of all agreements debts generally as specified in the Act Kepailitian," said Mualimin.
In the context of work or labor as one who has a right creditor in the bankruptcy proceedings, further Mualimin, under the provisions of Article 95 paragraph (4) Employment Act that the payment is intended precedence wage workers / laborers to be paid earlier than other debt . These provisions by the Government have been in line with the other provisions in the Civil Code and the Law on Bankruptcy and PKPU.
Mualimin also emphasized that special wage workers or laborers, both before and after the declaration of bankruptcy to get a higher position than the creditors’ separatist fee equivalent to the curator, bankruptcy costs and maintenance and rental costs. Rights are granted a notch higher by the law , as set forth in Civil Code Section 1134 which states that the liens and mortgages are higher than the privilege , except in cases where the law otherwise specified.
"So the provisions of Article 95 paragraph (4) of Law No. 13 of 2003 has been put laborer position as preferred creditor who has the privilege to take precedence over other creditors," he said .
Before ending statement, Mualimin also confirmed that there had indeed appropriate provisions and not in conflict with each other and have given precedence to the position that the payment of wages and other rights for workers or workers in the event of bankruptcy as a privilege. In fact, further Mualimin, the right to wages actually be preferred in order to carry out the mandate of Article 39 paragraph (2) of the Bankruptcy and PKPU.
Thus, according to the Government the provisions of Article 95 paragraph ( 4 ) Labor Law has been providing legal certainty and is not open to multiple interpretations . Quite the opposite has strengthened the position of the worker or workers by giving priority to the payment of wages and other rights in the event the company is declared bankrupt or liquidated.
"On the contrary according to the Government , if such provision is declared not binding legal effect or interpreted, then according to Government, it can create legal uncertainty and may even lead to multiple interpretations," said Mualimin. ( Yusti Nurul Agustin / mh )
Friday, August 30, 2013 | 15:54 WIB 131