(K)SBSI Lacks Legal Standing in Case on Job Creation Law

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Tuesday, June 29, 2021 | 20:47 WIB

JAKARTA, Public Relations—The Constitutional Court (MK) held a ruling hearing of Law No. 11 of 2020 on Job Creation on Tuesday afternoon, June 29, 2021. The petition was filed by the (Confederation of) Indonesia Prosperity Trade Union or (K)SBSI. The Court ruled that the petition was inadmissible.

"[The Court] adjudicated, declares the Petitioner’s petition inadmissible,” said Chief Constitutional Justice Anwar Usman along with the other constitutional justices at the pronouncement of the Decision No. 109/PUU-XVIII/2020 virtually.

The Petitioner challenged Article 81 point 15, Article 81 point 18, Article 81 point 19, Article 81 point 26, Article 81 point 27, Article 81 point 37, Article 151, and the Elucidation to Article 81 point 42, Article 154A paragraphs (1) and (2) of the Job Creation Law against Article 1 paragraph (3), Article 27 paragraph (2), and Article 28D paragraph (2) of the 1945 Constitution.

In its legal considerations, the Court reiterated the Petitioner’s explanation of its status as a union legal entity registered with the Central Jakarta Manpower Office and the Ministry of Law and Human Rights. The Petitioner was represented by Prof. Dr. Muchtar Pakpahan, S.H., M.H., and Vindra Whindalis as chairman and secretary-general of the central executive board (DPP) of (K)SBSI based on the results of the union’s 6th congress. Before considering the Petitioner’s constitutional impairment, the Court first considered their capacity as a union legal entity to file the petition.

Article 47 paragraphs (2) and (4) of the (K)SBSI’s statute and Article 12 paragraph (7) of its bylaws stipulate that the chairman is authorized to act for and on behalf of the organization internally and externally. Article 12 paragraph (8) letter a of its bylaws stipulates that the secretary-general is authorized to act for and on behalf of the organization in relation to its administration internally and externally. Therefore, the chairman can represent the organization in general while the secretary-general only for matters related to its administration. Therefore, only the chairman is authorized to file a judicial review petition to the Constitutional Court.

Muchtar Pakpahan Passed Away

In the petition revision hearing on April 21, 2021, the Court ask for confirmation regarding the death of Prof. Dr. Muchtar Pakpahan, S.H., M.H. as chairman of the (K)SBSI that represented the Petitioner, which the attorney confirmed. The attorney also explained that based on the decision of the union’s 6th congress, Vindra Whindalis was appointed its secretary-general. However, evidence disproved it and, instead, mentioned Bambang Hermanto in the position. Aside from that legal fact, the Court could not find any other evidence to support the Petitioner’s claim that Vindra Whindalis was (K)SBSI’s secretary-general for 2018-2022.

The Court held that the Petitioner was not represented by a party that was authorized to do so pursuant to the (K)SBSI’s statute and bylaws, thus did not have the legal standing to file the a quo petition. As such, the Court did not consider the subject matter of the petition, said Constitutional Justice Suhartoyo, who read out the Court’s legal considerations.

Also read: Muchtar Pakpahan Alleges Job Creation Law Propagates Outsourcing

The Petitioners questioned the removal of Article 59 paragraph (4) of Law No. 13 of 2003 on Manpower, which the claimed had resulted in the lack of limitation of the duration of employment agreements made for a specified period of time (PKWT) for contract workers.

In the revised petition, they also appealed that the outsourcing system not be implemented in Indonesia. They alleged that at least 8 norms of Chapter IV on Manpower in the Job Creation Law violate Article 27 paragraph (2), Article 28D paragraph (2), and Article 1 paragraph (3) of the 1945 Constitution. They claimed those articles had directly and indirectly harmed their constitutional rights. Those articles were said to have removed, added, and changed several articles of Law No. 13 of 2003 on Manpower.

The Petitioners claimed that they had made workers into contract ones, pushed for outsourcing in all fields, eradicated protection of pay, and disadvantaged workers in relation to termination (PHK) and severance pay. The Petitioners also said those norms were not in sync with their elucidation.

In the petitum, the Petitioners requested that the Court grant the entire petition and declare Article 81 point 15 and Article 59 of the Job Creation Law in Chapter IV on Manpower, or the Manpower cluster, in violation of Article 27 paragraph and (2) and Article 28D paragraph (2) of the 1945 Constitution. They also requested that the Court declare Article 81 point 18, Article 64, Article 81 point 19, Article 65, Article 81 point 26, Article 89, Article 81 point 27, Article 90 and Article 81 point 37, and Article 151 of the Manpower cluster in violation of Article 27 paragraph (2) of the 1945 Constitution.

Writer        : Nano Tresna Arfana
Editor        : Nur R.
PR            : Muhammad Halim
Translator  : Yuniar Widiastuti (NL)

Translation uploaded on 6/30/2021 20:16 WIB

Disclaimer: The original version of the news is in Indonesian. In case of any differences between the English and the Indonesian version, the Indonesian version will prevail.