---

Banua Sanjaya Hasibuan representing the Petitioners presenting the points of the petition for the judicial review of the Manpower Law, Monday (21/5) in the Plenary Courtroom of the Constitutional Court. Photos by Humas MK/Ganie.

A number of employees of PT Manito World filed a judicial review of the provision on Termination of Employment (PHK) of workers/laborers who have prolonged illness as stipulated in Law No. 13 of 2003 on Manpower. The case registered as No. 42/PUU-XVI/2018 was submitted by Banua Sanjaya Hasibuan, Song Young Seok, Pitra Romadoni Nasution, and Achmad Kurnia as employees at PT Manito World.

Banua Sanjaya Hasibuan who represented the Petitioners explained that they objected to the enactment of Article 172 of the Manpower Law that was deemed detrimental to their constitutional rights. Article 172 of the Manpower Law reads, "Workers/laborers who experience prolonged illnesses, experience disability due to work accidents and are unable to perform their work may, after they have been in such a condition for more than 12 (twelve) months consecutively, request employment termination upon which they shall be entitled to receive severance pay amounting to twice the amount of severance pay stipulated under Article 156 paragraph (2), reward pay for the period of employment they have worked amounting to twice the amount of such reward pay stipulated under Article 156 paragraph (3), and compensation pay amounting to one time the amount of that which is stipulated under Article 156 paragraph (4).”

In the petition, the Petitioners argued that their constitutional rights were potentially harmed by the enactment of Article 172 of the Manpower Law, because workers/laborers can apply for termination of employment and receive compensation if they experience prolonged illnesses, have a disability due to a work accident and cannot do their job exceeding 12 (twelve) months without being proof of by medical records. The absence of obligation to attach proof of medical records in this provision, according to the Petitioners, will harm the Petitioners and businessmen because they will experience substantial losses that could lead to bankruptcy because they will have to pay their obligation due to termination of employment submitted by the workers/laborers.

"If there are no medical records, if the employees say they are sick but there are no medical records, it will harm the businessmen in Indonesia," he explained before the panel of justices led by Constitutional Justice Suhartoyo.

For this reason, the Petitioners requested that the Constitutional Court declare that the articles contradictory to the 1945 Constitution and having no binding legal force insofar as the phrase "may request termination of employment" not be interpreted as "may request termination of employment and also provide medical records evidence."

Not a Positive Legislator

Responding to the petition, Constitutional Justice Maria Farida Indrati reminded [the Petitioners] that the Constitutional Court is not a positive legislator who could change the article as requested by the Petitioners. "The Court cannot change the article, but it can [interpret] the article," she said.

In addition, Justice Maria added that Article 172 of the Manpower Law actually benefits the Petitioners as employees. For this reason, the Petitioners were asked to revise the posita. "Why did the Petitioners petition it as employees? In fact, employees are the ones benefit from Article 172 of the Manpower Law. Should the employee’s status be determined; laborers or permanent employees? Then it must be observed who is harmed because if the legal standing is unclear, then (the petition) cannot continue," she explained.

Meanwhile, Constitutional Justice Arief Hidayat suggested that the Petitioners clarify their legal stamdomg. He questioned the Petitioners who are employees but represented PT Manito World. "The Petitioner is PT Manito World, so its legal standing as a business entity should be represented by the president director. So, there must be a legal power of attorney even though the president director is a foreign national," he said.

Justice Arief also questioned the deed of establishment of the company because if it was not included, the Petitioners had a legal standing as individual petitioners, not a legal entity. (Lulu Anjarsari/Yuniar Widiastuti)

---