Director General of Manpower and Transmigration Ministry for industrial relations and social security Haiyani Rumondang delivers testimony for responding Applicant questions at judicial review session on Act of Manpower, on Thursday (30/7) at Plenary Room, the Constitutional Court Building. Photo PR/Ganie
The Constitutional Court (Mahkamah Konstitusi –MK) holds further judicial review session on Act Number 13 Year 2003 of Manpower (Undang-Undang Ketenagakerjaan –UU Ketenagakerjaan). As scheduled, the Government delivers testimony at the session which led by Chief Justice Arief Hidayat.
Director General of Manpower and Transmigration Ministry for industrial relations and social security (Direktur Jenderal Pembinaan Hubungan Industrial dan Jaminan Sosial, Kementerian Tenaga Kerja dan Transmigrasi) Haiyani Rumondang, represents the Government, argues the provision in Article 90 (2) Act of Manpower and its elucidation is indeed provide balance between employees and employers. The Government assesses Applicant’s petition is more related to norm implementation, rather than norm constitutionality.
Haiyani explains the philosophy of minimum wage is for employees/workers basic protection and for safety net to prevent extremely decreased wages. Based on philosophy above, the Government regulates minimum wage policy which shall obey by entire companies and employers, as mandated by Article 88 (3) letter a Act of Manpower.
“Due to financial capability of companies for paying minimum wage is unequal, a provision is needed for providing legal certainty regarding the implementation of minimum wage,” explained her at the session of case number 72/PUU-XIII/2015, on Thursday (30/7) at Plenary Room, the Constitutional Court Building.
She explains, wage suspension is provided to employers/companies who unable to pay minimum wage as determined by respective Governor and Act of Manpower. By wage suspension, companies/employers have chance for paying their workers/employees as minimum as they able to in a particular period.
“Thus, wage suspension provided to employers/companies who having financial difficulties, is indeed giving protection to workers to keep working on their companies. The provision a quo is also intended for providing legal certainty on working relations sustainability,” added her.
The Government explains wage suspension mechanism shall be done in line with the Decree of Manpower and Transmigration Ministry Number Kep.231/men/2003 regarding Wage Suspension Procedures (Tata Cara Penangguhan Pelaksanaan Upah Minimum). One of the mechanisms regulated by the Decree is wage suspension request shall be done by agreement between the company with their workers.
As known, the Joint Independent Workers Union (Gabungan Serikat Buruh Mandiri –GSBM) and the Awaken Workers Union (Serikat Buruh Bangkit) as Applicant assesses Article 90 (1) Act of Manpower which regulates prohibition on underrate wage payment, turns out to be optional by the provision in Article 90 (2) and its elucidation. The regulation has open opportunity to suspend payment.
The Applicant argues, based on Article 90 (2) Act a quo, the suspension is regarding on payment time and the amount of wage paid by employers/companies. The suspension can be in form of paying wage as much as previous minimum wage, paying wage in-between previous minimum wage and new minimum wage, or increasing minimum wage gradually.
“Provision on wage suspension causes uncertainty. Minimum wage determined by the Government, becomes uncertain due to the opportunity of provision abuse in which labors/workers receive wage below the standard of feasible living,” said Applicant’s Attorney Nikson Gans Lalu on the session held on Wednesday (17/6)
According to the Applicant, Act of Manpower regulates workers/labors rights on industrial relations, in order to avoid arbitrary actions conducted by employers/companies, including arbitrary wage payment. Therefore in the petitum, the Applicant requests the Constitutional Court to declare Article 90 (2) Act of Manpower and its elucidation contrary to the Constitution and have no legal binding. (Lulu Hanifah/Prasetyo Adi N)