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Plenary ruling hearing of the judicial review of the Manpower Law, Wednesday (27/2) in the Constitutional Court. Photo by Humas MK/Ganie.

JAKARTA, Public Relations of the Constitutional Court—The Constitutional Court decided not to accept the judicial review petition of Law No. 13/2003 on Manpower on Wednesday afternoon (27/2/2019). The petition registered as No. 101/PUU-XVI/2018 was submitted by Esther Fransisca Nuban, represented by attorney Marthen Boiliu. “The verdict rules that the Petitioner’s petition cannot be accepted,” plenary chairman Anwar Usman asserted.

The Court stated that the provision of Article 156 paragraph (2) of the Manpower Law regulated the calculation of severance pay that was generally referred to in termination of employment for reasons laid out in said law. Therefore, the provision is not only related to termination of employment due to absence as stipulated in Article 168 paragraph (1) of the Manpower Law.

Severance pay in question is part of the worker’s rights and the employer’s obligation as regulatedin Article 156 paragraph (2) of the Manpower Law, which reads, “Should termination of employment take place, the entrepreneur is obliged to pay the dismissed worker severance pay and or a sum of money as a reward for service rendered during his or her term of employment.”

“Severance pay calculation in the provision of Article 156 paragraph (2) of the Manpower Law is the basis for the minimum amount of severance pay, which is not always the same, in case of termination of employment. Meanwhile, Article 168 paragraph (1) of the Manpower Law regulates the consequences for workers who are absent as well as the amount of severance pay received by the worker if their employment is terminated by the company due to their absence,” Deputy Chief Justice Aswanto elaborated.

However, the fact stands that the Petitioner is currently still working at PT AEA while having received a warning letter due to her absence. The letter is something common in employment to enforce discipline.

“The fact shows that the Petitioner has not suffered loss due to termination of employment nor has [she] received severance pay from her workplace as stipulated in Article 168 paragraph (1) and Article 156 paragraph (2) of the Manpower Law. The Petitioner only received a warning letter due to her absence. Although the Petitioner does not wish to sign the letter because of the concern for her future if her employment is terminated by the company, the [termination] has not happened to the Petitioner,” Justice Aswanto explained.

Therefore, the Court had no doubt in declaring that the condition for “potential loss that within logical reasoning is inevitable” was not met because the Petitioner was still working at PT AEA. Therefore, the Court viewed no constitutional loss had occurred due to the enactment of Article 156 paragraph (2) and Article 168 paragraph (1) of the Manpower Law requested for review.

Based on the considerations, the Court ruled that the Petitioner did not have the legal standing to file the a quo petition. Considering that although the Court was authorized to decide on the a quo petition, because the Petitioner did not have the legal standing to file the a quo petition, the Court did not consider the subject of the Petitioner’s petition.

The Petitioner had affirmed her constitutional loss due to the enactment of Article 156 paragraph (2) of the Manpower Law. She felt that she had been treated arbitrarily by the company where she had worked for 24 years as a result of the enactment of the a quo article. The Petitioner reviewed Article 168 paragraph (1) and Article 156 paragraph (2) of Law Number 13 of 2003. She had been 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 had refused to sign it 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. 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. (Nano Tresna Arfana/LA/Yuniar Widiastuti)

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