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Attorney Marthen Boiliu reading the principal points of the petition in the judicial review of the Manpower Law, Tuesday (18/12) in the Courtroom of the Constitutional Court. Photo by Humas MK/Ifa.

The Constitutional Court (MK) held the judicial review hearing of Law No. 13/2003 on Manpower on Tuesday (18/12) afternoon. The petition registered as No. 101/PUU-XVI/2018 was submitted by Esther Fransisca Nuban, represented by Marthen Boiliu as the attorney. 

As employee of PT. Jakarta Asih Eka Abadi (AEA), Esther reviews Article 168 paragraph (1) and Article 156 paragraph (2) of Law Number 13 of 2003. The employee of 24 years were called to the HR department of AEA and asked to sign the first warning letter (SP1) related to tardiness and a 3-day absence in August 2018. However, she refused to sign if because AEA did not provide enough reason to give her a first warning letter. 

"The Petitioner already asked for written permission in advance to her direct supervisor to deal with her child\'s treatment and care in one of the hospitals in Bekasi. The proof of the child\'s treatment and care was submitted to the supervisor directly when she returned to work," explained Marthen to the panel of justices of the Constitutional Court. 

Even though the Petitioner had already requested written permission from her direct supervisor, Marthen added, Rp453,416 was deducted from the Petitioner\'s salary in August 2018, as stated in her salary slip in August 2018. According to the Petitioner, the company did not have enough reason to impose first warning sanction to her. Therefore, the Petitioner refused to sign the letter, including potential second and third warning letters from AEA. 

"According to the Petitioner, work absence implies absence without information and/or without asking the company for permission beforehand through direct supervisor. Therefore, as the Petitioner had requested permission from the company through her direct supervisor and AEA had granted permission and approval for her absence, both AEA and the Petitioner had been in agreement. That agreement is the basis for the Petitioner not to be subjected to any sanctions from the company for the permission given by AEA," Marthen said. 

However, Marthen added, the company went on to deduct Rp453,416 from the Petitioner\'s salary in August 2018 for this absence, which the Petitioner did not object to. Then, AEA imposed sanction on the Petitioner for the permission already given to her by giving a first warning letter, which she refused to sign. 

"In principle, a person cannot be given two sanctions for the same act (nebis in idem) and after all, signing the first warning letter would equal to acknowledging a wrongful act. The acknowledgment given explicitly and clearly is proof that has legal force, is absolute and perfect according to law," said Marthen. 

The provisions of Article 66 paragraph (2) of AEA Company Regulations for the 2017-2019 period declares that every employee who receives a written warning letter must sign the warning letter. However, the Petitioner refused to sign the first warning letter, and potential second and third warning letters, for appropriate reasons and according to law as stated above. Thus, there is only one solution for the Petitioner, namely suspension. Both the laws and regulations on employment and Article 68 paragraph (1) of AEA Company Regulations do not regulate whether the suspension be verbal or written. 

"If the Petitioner is given a suspension verbally, it will be difficult for her to prove her absence during the suspension. Therefore, the Petitioner can be considered absent for five or more consecutive days by the company. The company may issue a first and second warning letters appropriately and in writing, in accordance with the provisions of Article 168 paragraph (1) of Law Number 13 of 2003 on Manpower, which is petitioned for review. Even if the Petitioner comes to fulfill the written and appropriate call from the company, this will not prevent the company from giving the Petitioner a false hope without fulfilling her rights, which is regulated and guaranteed in the existing laws and regulations in manpower," explained Marthen. 

Concrete Case 

The Chairperson of the panel, Justice Enny Nurbaningsih, affirmed that the Petitioner\'s petition was a concrete case, which was not within the Constitutional Court\'s authority. "Indeed, sometimes we have to be careful when filing a petition. The Constitutional Court [reviews the constitutionality of norms]. The provisions of the in casu law here, Article 168 paragraph (1) and Article 156 paragraph (2) of the Manpower Law against the Constitution, the constitutional rights of the Petitioner are to be protected there. However, this is a concrete case and has not yet entirely happened to Miss Esther," she said. 

Meanwhile, Constitutional Justice Arief stated that the petition was not concise and was repetitive. He requested that she summarize and clarify the petition following the petitions that had been submitted to the Constitutional Court. "Actually, this can be summarized, formatted as regulated by PMK, and arranged so that the justices can easily understand it, understand the wishes of the Petitioner. We recommend that this application be brief, concise, and easy for anyone to understand," said Justice Arief. (Nano Tresna Arfana/LA/Yuniar Widiastuti)

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