Supporters congratulating Jhoni Boetja as Principal Petitioner after the ruling hearing of the judicial review of the Labor Law on Thursday (14/12) in the Courtroom of the Constitutional Court. Photo by Humas MK/Ganie.

The Constitutional Court (MK) granted the petition of individual workers who requested material review on the regulation of layoff for workers of one company who are married to each other as stated in Law No. 13/2003 on Employment (Labor Law) on Thursday (14 / 12) in the Courtroom of the Constitutional Court.

"Granted the petition of the Petitioners entirely and declared the phrase “unless so required in the collective work agreement or the enterprise’s rules and regulations” in Article 153 paragraph (1) letter f of Law No. 13/2003 on Employment contrary to the Constitution of the Republic of Indonesia and not having binding legal force," said Chief Justice of the Constitutional Court Arief Hidayat when reading the verdict.

In their petition, the Petitioners argued that Article 153 paragraph (1) letter f of the Labor Law violated the constitutional rights of the Petitioners. Article 153 paragraph (1) letter f reads, “The entrepreneur is prohibited from terminating the employment of a worker/laborer because of the following reasons: (f) The worker/laborer is related by blood [birth] and or through marriage to another worker in the enterprise unless so required in the collective work agreement or the enterprise’s rules and regulations.”

The Petitioners claimed they could potentially lose their jobs due to marriage to coworkers if it was stipulated in the employment agreement, company regulations, or collective work agreement. In addition, the Petitioners argued that Article 153 paragraph (1) letter f of the Labor Law is contradictory to Article 27 paragraph (2), Article 28D Paragraph (1), Article 28C paragraph (1), Article 28D paragraph (2), and Article 28I paragraph (2) of the 1945 Constitution because it limits human rights. Not only that, the provisions of Article 153 paragraph (1) letter f of the Labor Law on the prohibition of marriage among coworkers are in fact contrary to the provisions of other articles in the same law, as well as in other laws, such as the Marriage Law and the Human Rights Law.

Restrictions as contained in Article 153 paragraph (1) letter f of the Labor Law is deemed not respecting the rights and freedoms of others because there is no right or freedom of another person who is disturbed by blood relation and/or marital bond. This was conveyed by Constitutional Justice Aswanto when reading the legal considerations of Case No. 13/PUU-XV/2017 petitioned by the Workers Union of PLN (the state-owned electricity firm). Justice Aswanto also mentioned that no moral norms, religious values, security, and public order in a democratic society are disturbed by the fact that coworkers in one company have blood relations and/or marital bond.

With regard to the arguments of the Government, the House of Representatives (DPR), and Indonesian Employers Association (APINDO) as the Relevant Parties, that the enactment of the articles is to prevent negative things occurring in the company and to establish good and professional working conditions as argued by one of the Relevant Parties (APINDO), the Court is of the opinion that such reasons do not meet the requirements for constitutional restrictions as contained in Article 28J paragraph (2) of the 1945 Constitution. The company can prevent such [negative things] by formulating strict corporate rules that enable high integrity among workers. The Court also considers such arguments not always relevant to be applied without regard to the balance of statuses of the parties when the agreement was made. In this case, the worker/laborer is in an unequal position because they are in a weaker position as the party who needs the job.

"With this unbalanced position, in this case the philosophy of freedom of contract that is one of the conditions of the validity of an agreement is not fully fulfilled. Based on such considerations, the word "already" contained in Article 153 paragraph (1) letter f of Law No. 13/2003 does not necessarily mean that the fulfillment of the principle of freedom of contract has been fulfilled. Considering based on all the above considerations, the Court is of the opinion that the arguments of the Petitioners\' petition are legally grounded," Justice Aswanto asserted. (Sri Pujianti/LA/Yuniar Widiastuti)