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Chairperson of the Forum for Pensioners of Bank Negara Indonesia (FPP BNI) Martinus Nuroso reading out points of petition through video conference at the preliminary hearing of the judicial review of Law Number 13 of 2003 on Manpower, Tuesday (18/12) in the Courtroom of the Constitutional Court. Photo by Humas MK/Ifa.

Chairperson of the Forum for Pensioners of Bank Negara Indonesia (FPP BNI) Martinus Nuroso once again filed a petition of Law No. 13/2003 on Manpower to the Constitutional Court (MK). The preliminary examination hearing of case No. 100/PUU-XVI/2018 took place on Tuesday (18/12).

Martinus, representing FPP BNI, requested a review of Article 167 paragraph (3) of the Manpower Law that reads, "If the employer has included the worker/laborer whose contributions/premiums paid by the employer and the worker/laborer, then that which is calculated with the severance pay shall be the pension whose contributions/premiums have been paid by the employer."

Through his petition, the Petitioner revealed various efforts he had made along with FPP BNI to obtain underpaid severance pay. The applicant claimed that BNI Management, through its internal regulations, had unilaterally interpreted Article 167 paragraph (3) of the Manpower Law by not considering the elucidation to the article. The elucidation to Article 167 paragraph (3) explicitly explained the calculation example of the pay that should have been received by the Petitioner as a BNI pensioner. Therefore, the right of the Petitioner to obtain severance pay in the appropriate amount is not fulfilled. Therefore also, the Petitioner had suffered material losses. The inconsistency between the article and the elucidation to it encouraged the Petitioner to file a petition to review the provision.

In his petition, the Petitioner also stressed that the article he requested for review was an issue for all workers, who are subject to the Manpower Law. The Petitioner theorized, with the interpretation of the article by the Constitutional Court, BNI\'s internal regulations regarding the calculation of severance pay would be null and void so it would no longer harm him. Therefore, the Petitioner requested that the Constitutional Court provide a constitutional interpretation of Article 137 paragraph (3) of the Manpower Law.

"The Petitioner claims that his constitutional loss occurred because the BNI Management and the Industrial Relations Court judges unilaterally interpreted Article 167 paragraph (3) and the Elucidation to Law 13/2003, resulting in underpaid severance pay," he explained without attorney present.

Justices’ Advice

Responding to the petition, Constitutional Justice Enny Nurbaningsih requested clarity regarding the basis of the review because the petition only requested an interpretation of Article 167 paragraph (3) of the Manpower Law. "This section must be very clear. [Otherwise] it would make the legal standing unclear too," she said.

Justice Enny further requested that the Petitioner explain the constitutionality loss he had experienced. "Is it happening factually, [real or potential]?. This must be explained so that it is clear, gradual, and systematic," she said.

Meanwhile, Constitutional Justice Arief Hidayat asked the Petitioner to elaborate on posita, which proved this was a matter of constitutionality and not a concrete case. "If what you mentioned earlier is a concrete case, the issue is in the implementation of this article. Ideally the posita describes Article 167 and the elucidation as a matter of constitutionality," he explained.

In relation to the petitum, Justice Arief requested that it be revised as well. He suggested that the Petitioner follow other petitions that had been submitted to the Court. He also requested that the Petitioner affirm his legal standing, whether as an individual or an organization. (Arif Satriantoro/LA/Yuniar Widiastuti)

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