Association of Indonesian Trade Unions Federation (FISBI) invokes judicial review of Law No. 13 of 2003 on Employment toward Constitution of the Republic of Indonesia Year 1945 to the Constitutional Court. FISBI represented by its chairman M. Komaruddin, assessing the legal uncertainty in the phrase "by law" as stated in Article 59 paragraph (7), Article 65 paragraph (8), and Article 66 paragraph (4) Labor Law.

Article 59 paragraphs (7) of Employment Law reads:

A work agreement for a specified time which does not comply with the provisions referred to in paragraph (1), paragraph (2), paragraph (4), subsection (5), and (6) then by law becomes a work agreement for an unspecified time.

Article 65 paragraph (8) Labor Law reads:

In terms of the provisions referred to in paragraph (2) and (3) is not fulfilled, the legal employment status of workers / laborers with the recipient company chartering a working relationship turned into worker / laborer with the employer company.

Article 66 paragraph ( 4 ) Labor Law reads:

In terms as provisions referred to in paragraph (1), paragraph (2) letter a, b, and d, and paragraph (3) is not fulfilled, the legal status of the employment relationship between the worker / laborer and service provider company workers / laborers switch be a working relationship between laborer and employer.

The phrase "by law" in the third chapter of the potential conflict with Article 28D paragraph (1) of the 1945 Constitution. In the trial of the test case number 7/PUU-XII/2014, Komaruddin was explaining that the phrase was set up as a result of non-fulfillment of the terms of the employment agreement specified time , so that it becomes indefinite employment agreement or contract workers into permanent workers.

Authority establishes contract workers into permanent workers are in the labor inspectors with the authority to publish the results of the written examination and the determination of which is concrete, individualized, and final without raising legal consequences for someone.

Unfortunately, a written determination from the competent authority in the field of employment are often not adhered to or run by employers so that non-recognition, security, protection, and law enforcement employment status of workers / laborers, as well as to maintain a conducive industrial relations, the implementation of a written determination that can requested to the court to be implemented according to the rules and regulations.

“So far, companies often overlook the determination of contract workers into permanent. We cannot do anything because the district court had no authority establishes feel firm to carry out the determination in writing. While the industrial relations court did not deal with the status of worker displacement. So do not be surprised there are a lot of contract workers in enterprises, "said appendices after the trial in the Court House, Jakarta, Wednesday (12/02/2014).

Therefore, the appendices as the applicant requested the Court to add the phrase ‘by law’ with the phrase ‘whose implementation can be requested from the Court of indefinite employment agreement’ in section a quo.

Potential nebis in idem

The panel of judges chaired by Anwar Usman and members Patrialis and Harjono suggested that the applicant studied labor law had been cut in 2004. In addition, the applicant also asked to study the petition with the Labor Law case number 96/PUU-XI/2013 are also being tried in the Court.

"The Court is examining a number 96/PUU-XI/2013 and try the case, now in the process of examination and there are similarities. To avoid the petition stated nebis in idem, you have to learn things that have been disconnected and is being tested," said Anwar.

While Patrialis ask the Applicant to reconstruct application to further confirm the existence of constitutional rights as citizens are harmed or potentially harmed. But she also asked the Applicant to make sure it does not lose if the Court granted the Law test in its decision.

Finally, Harjono suggested that the applicant complete the petition with concrete experience a loss with the law, in particular the phrase ‘by law’ is. "Because the Act has been implemented, in practice there are problems. Because of the phrase ‘by law’ is what is happening? If it concerns the Petitioner to explain the what?" said Harjono. ( Lulu Hanifa / mh )