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Applicant’s Attorney Pelikson Silitonga was interviewed by the media on Wednesday (17/6) at Plenary Room, the Constitutional Court Building. Photo PR/Ganie

 

 

The Constitutional Court (Mahkamah Konstitusi –MK) held judicial review session on Act Number 13 Year 2003 of Manpower (Undang-Undang Ketenagakerjaan –UU Ketenagakerjaan) towards the 1945 Constitution. The petition was filed by the Joint Independent Labor Union (Gabungan Serikat Buruh Mandiri –GSBM) and the Awakening Labor Union (Serikat Buruh Bangkit –SBB) who reviewed the provision on Article 90 (2) and its elucidation.

Article 90 (2) Act of Manpower

For employers who cannot pay minimum wage as stipulated in Article 89, wage suspension could be done

(Bagi pengusaha yang tidak mampu membayar upah minimum sebagaimana dimaksud dalam Pasal 89 dapat dilakukan penangguhan.)

Elucidation of Article 90 (2) Act of Manpower

Suspension of minimum wages implementation for incapable companies is intended for liberate respective companies paid minimum wages prevailing within a certain time. If the suspension end, respective companies is obliged to pay minimum wages prevailing at that time, but not required to pay fulfillment of minimum wages prevailing during suspension period

(Penangguhan pelaksanaan upah minimum bagi perusahaan yang tidak mampu dimaksudkan untuk membebaskan perusahaan yang bersangkutan melaksanakan upah minimum yang berlaku dalam kurun waktu tertentu. Apabila penangguhan tersebut berakhir maka perusahaan yang bersangkutan wajib melaksanakan upah minimum yang berlaku pada saat itu tetapi tidak wajib membayar pemenuhan ketentuan upah minimum yang berlaku pada waktu diberikan penangguhan.)

 

Represented by Against Wage Suspension Advocate Team (Tim Advokasi Tolak Penangguhan Upah), the Applicant said prohibition on paying less than minimum wage for employers as stipulated on Article 90 (1) Act of Manpower became optional by Article 90 (2) and its elucidation. The regulation had open opportunity for employer who couldn’t pay minimum wages to suspend wage payment. 

Based on Article 90 (2) Act of Manpower which then regulated in Manpower Minister Decree Number 231 Year 2003, the suspension was not just about the time, but also about the amount of wage paid by the employer. The suspension could be in form of paying minimum wages in accordance with previous minimum wages, paying minimum wages which higher than previous minimum wages but lower than new minimum wages, or increasing minimum wages gradually.

“Wage suspension caused uncertainty. Minimum wages stipulated by the government become uncertain because it could possibly deviated, the wages acquired by labors become lower than feasible living standard,” said Applicant’s Attorney Nikson Gans Lalu at the session of case number 72/PUU-XIII/2015 at Plenary Room, the Constitutional Court Building.

Whereas, according to the Applicant, legal certainty towards labors rights in industrial relations, including rights to acquire feasible wages, were stipulated on Act of Manpower to avoid wage paying arbitrariness which could commited by employers. Therefore in the petitum, the Applicant requested to the Court to declare Article 90 (2) and its elucidation contrary to the 1945 Constitution and had no legal binding.

Responding the petition, Justice Panel led by Constitutional Justice Manahan M.P. Sitompul accompanied by Constitutional Justice Anwar Usman and I Dewa Gede Palguna advised the Applicant to further elaborate the constitutional loss suffered by the Applicant. “Please elaborate more in order to the petition logic obvious and whether (the provision) violated Applicant’s constitutional rights,” said Constitutional Justice Manahan.

Constitutional Justice Anwar also reminded the Applicant that similar norm was once reviewed in case number 61/PUU-VIII/2010. “Where are the differences between Case Number 61 Year 2010 with this case, so it will not be similar with other cases which cause nebis in idem. It should be elaborated,” said him.

Constitutional Justice Palguna asked the Applicant to strengthen legal standing. “If you cannot enter legal standing, you have no access to petition,” said him. (Lulu Hanifah/Prasetyo Adi N)

 

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