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Applicant’s Attorney Iskandar Zulkarnaen delivered petition points in preliminary session of Migrant Worker Protection and Plotting Act, on Tuesday (23/2) in Panel Session Room, the Constitutional Court Building. Photo PR/Ganie

 

 

 

The Indonesian Migrant Workers Union (SPILN) files judicial review petition against Act No. 39 Year 2004 of Migrant Worker Protection and Plotting. In Tuesday’s (23/2) session of Case Number 12/PUU-XIV/2016, the union assessed Act a quo, particularly Article 85 (2), was detrimental to migrant worker’s constitutional rights.

Article 85 (2) Act a quo stated “In term of deliberation settlement has not reached an agreement, one of the parties or both parties may ask for help to relevant institution in manpower sector in regent/city, province, or government.” (“Dalam hal penyelesaian secara musyawarah tidak tercapai, maka salah satu atau kedua belah pihak dapat meminta bantuan instansi yang bertanggung jawab di bidang ketenagakerjaan di Kabupaten/Kota, Provinsi atau Pemerintah”).

Representing by the union’s head Imam Ghozali, the Applicant considered the provision regulated settlement of migrant workers-private recruitment agencies (PPTKIS) dispute as a result of plotting agreement deviation at manpower institution stage, in this case was the National Labor Plotting and Protection Agency (BNP2TKI). However, settlement in BNP2TKI stage caused legal problems for the Applicant which damaged migrant worker’s legal certainty to get unfulfilled right if the settlement didn’t reach an agreement.

 “The support from manpower institutions, for example state institution which is the BNP2TKI, is considered not enough in providing protection and legal certainty. Act No 39 Year 2004 doesn’t regulate the time of settlement process that carried out by the BNP2TKI,” said Applicant’s Attorney Iskandar Zulkarnaen.

Moreover, the Applicant assessed the government didn’t regulate other legal attempts and settlement time if deliberation settlement which already facilitated by manpower institutions still hadn’t met an agreement. The Applicant also argued the follow up of migrant workers-private recruitment agencies dispute in which the agencies yet fulfilled their obligations as stated in plotting contract was unclear, even when the dispute had already facilitated by manpower institutions.

“Considering migrant worker’s rights have already regulated in plotting contract, unfulfilled rights is a part of migrant workers-PPTKIS dispute in which legal attempts could be conducted in accordance with mechanism as stipulated in Act No. 2 Year 2004,” said him in front of Justice Panel led by Constitutional Justice Patrialis Akbar.

Therefore, the Applicant requested the Court to declare Article 85 (2) Act a quo contrary to the 1945 Constitution if it wasn’t interpreted “Migrant workers may challenge private recruitment agencies to industrial relations settlement institution regarding disputes over unfulfilled rights which stated in plotting contract, in terms of an agreement hasn’t reached in deliberation or one of the parties rejects to conduct deliberation, and settlement attempt has done by manpower institution in regency/city, province, or government.” (“Tenaga Kerja Indonesia (TKI) dapat mengajukan gugatan perselisihan hak akibat tidak dipenuhinya hak-haknya yang tertuang dalam perjanjian penempatan ke lembaga penyelesaian perselisihan hubungan industrial terhadap Pelaksana Penempatan Tenaga Kerja Indonesia Swasta (PPTKIS), dengan syarat telah dilaksanakan musyawarah namun tidak mencapai kesepakatan atau salah satu pihak menolak musyawarah, dan telah dilakukan upaya penyelesaian di instansi yang bertanggung jawab di bidang ketenagakerjaan di Kabupaten/Kota, Provinsi atau Pemerintah”).

Justice Input

Responding the petition, Justice Panel delivered revision inputs. Constitutional Justice Wahiduddin Adams advised the Applicant to clarify legal standing. “Applicant needs to explain legal standing, whether as individual citizen, workers union’s head, or private legal entity,” said him.

Meanwhile, Constitutional Justice Patrialis advised the Applicant to revise petition demands because the Constitutional Court couldn’t act as positive legislator. Justice Panel provided 14 workdays for the Applicant to revise the petition.

The next session will be scheduled on revision examination. (Lulu Anjarsari/lul/Prasetyo Adi N)

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