Witnesses M. Sidarta and Said Iqbal testifying for the Petitioners virtually at a judicial review hearing of the Job Creation Law, Wednesday (25/8/2021). Photo by Humas MK/Bayu.
Wednesday, August 25, 2021 | 14:40 WIB
JAKARTA, Public Relations—The Constitutional Court (MK) held another judicial review hearing of Law No. 11 of 2020 on Job Creation virtually from on Wednesday, August 25, 2021 in the plenary courtroom. At this seventh hearing, six cases were heard: No. 91/PUU-XVIII/2020, 103/PUU-XVIII/2020, 105/PUU-XVIII/2020, 107/PUU-XVIII/2020, 4/PUU-XIX/2021, and 6/PUU-XIX/2021. At the hearing, chaired by Chief Justice Anwar Usman, M. Sidarta testified as a witness for case No. 4/PUU-XIX/2021 while Said Iqbal for case No. 4/PUU-XIX/2021.
M. Sidarta, a member of the National Tripartite Cooperation Institution (LKS Tripartite) revealed matters in relation to the creation of the Job Creation Law.
“LKS Tripartite is a forum for communication, consultation, and deliberation on labor issues, whose members consist of elements of the government, employers’ organizations, and trade unions or labor unions," said Sidarta, a former employee of PT Dirgantara Indonesia.
The members of LKS Tripartite, at a maximum of 45 people, are appointed by taking into account the representation of the Government, employers’ organizations, and trade/labor unions.
“The duties and functions of LKS Tripartite are to provide considerations, suggestions, opinions to the Government and relevant stakeholders in formulating policies and solving employment problems. The LKS Tripartite was established by the president and is responsible to the president. All costs incurred for the implementation of LKS Tripartite’s duties are borne by the government agency responsible for manpower,” he explained.
Sidarta said that since the president’s speech on October 20, 2019 until the Job Creation Bill was submitted to the House of Representatives (DPR) on February 12, 2020, the LKS Tripartite had never been asked for advice, opinions, or proposals on the preparation of the bill, which later became the Job Creation Law. He heard of the plan for the Omnibus Law on Job Creation through the media during the president’s inauguration speech at the MPR/DPR Building on October 20, 2019.
"I and members of the LKS Tripartite before me were never invited by the Government to draft and discuss the Job Creation Bill. We didn't even receive the official draft of bill from the Government or from the LKS Tripartite,” he said. He also revealed that he found out that the Government had formed the Job Creation Omnibus Law task force, which did not involve labor unions, through a Decree of the Minister of the Economy.
Sidarta revealed that labor unions were not involved in the planning, preparation, and discussion of the bill, so the All-Indonesian Workers Union (SPSI) rejected it through a peaceful protest in front of the DPR Building on February 12, 2020, which he attended. He and his fellow workers were accepted by the House, who stated that they had not received the draft of the bill from the Government. After the protest disbanded, the Government submitted the draft to the House. Sidarta found out about this through the media.
Facts of the Job Creation Law
Next, Said Iqbal testified as a witness for the case No. 6/PUU-XIX/2021. He is currently the chairman of the Confederation of Indonesian Trade Unions (KSPI), the chairman of the Indonesian Metal Workers Federation National Assembly (MN FSPMI), and the central coordinating executive of the International Labour Organization (ILO).
Said revealed the general facts in planning, drafting, discussing, ratifying, determining, and enacting the labor cluster of the Job Creation Law (omnibus law). He said labor unions were never asked and involved in the making of the law.
“During the preparation and enactment of the Job Creation Law, every time we conveyed our views, thoughts, and even comparisons to the contents of the articles in the Job Creation Law, we were always said to be spouting hoaxes. Even, the Government never made it public. Even when the draft of the Job Creation Bill was submitted and discussed by the House, we never received any official draft, especially regarding the labor cluster,” Said revealed.
Said and labor unions colleagues always said to the House that nowhere in the world were laws related to investment combined with laws for the protection of workers and laborers. They are always regulated in two separate laws.
“However, in the Job Creation Law, the two are combined, so there is a conflict of interest,” he said.
Said explained that upon concluding the facts from drafting to enactment of the Job Creation Bill, it was discovered that bill had been prepared long ago without any public participation. No one asked labor unions for recommendations, especially on the labor cluster.
In addition, according to Said’s observation, the Job Creation Law (omnibus law) only relied on investment, as shown by President Joko Widodo in his speech on October 20, 2019.
“Sneaky articles were enforced for the benefit of capital owners and ministers with business ties. There was also support from House [members] who have business ties,” he said.
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Petition No. 91/PUU-XVIII/2020 was filed by Hakimi Irawan Bangkid Pamungkas, Novita Widyana, Elin Dian Sulistiyowati, Alin Septiana, and Ali Sujito (Petitioners I-V). Petitioner I worked at a company with an employment agreement made for a specified period of time (PKWT) as a technician helper. However, due to the COVID-19 pandemic, his employment was unilaterally terminated. He alleges that Article 81 of the Job Creation Law has eliminated the employment period of PKWT contracts, which restrict citizens from entering into employment agreement made for unspecified period of time (PKWTT) or becoming permanent employees.
Meanwhile, Petitioner II is a vocational high school student majoring in administration and office administration at SMK Negeri I Ngawi. She could potentially be employed under PKWTT with the enactment of the Job Creation Law. Petitioner III is an undergraduate student of Education Administration at Brawijaya University while Petitioner IV is an undergraduate student of Office Administration at the State University of Malang. Petitioner V is a student at the Natural Sciences Education program at Modern Ngawi Teacher Training College (STKIP).
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The petition No. 103/PUU-XVIII/2020 was filed by Elly Rosita Silaban and Dedi Hardianto of the Confederation of All Indonesian Labor Unions (KSBSI). They filed for the formal judicial review of Chapter IV of the Job Creation Law and the material judicial review of Chapter IV Part II of the Job Creation Law, that is Article 42 paragraph (3) letter c and Article 57 paragraphs (1) and (2).
Article 42 paragraph (3) letter c reads, “Foreign workers needed by employers in the type of production activities that have halted due to emergencies, vocation, technology-based start-ups, business visits, and research for a certain period of time.” Article 57 paragraph (1) reads, “A work agreement for a specified period of time shall be made in writing and use Indonesian and Latin letters.” Article 57 paragraph (2) reads, “In the event that the work agreement for a specified period is made in Indonesian and in a foreign language, if there is any difference in interpretation between the two, the work agreement for a specified period made in Indonesian shall apply.”
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The Petitioners of case No. 105/PUU-XVIII/2020 are the chairman of the Garment and Leather Textile Workers’ Union Federation - All-Indonesian Workers Union Indonesia (PP FSP TSK-SPSI) Roy Jinto and 12 individual petitioners. They challenge Article 81 point 1, Article 13 paragraph (1) letter c point 2, Article 14 paragraph (1) point 3, Article 37 paragraph (1) letter b point 4, Article 42 paragraph 12, Article 56 paragraph (3) and paragraph ( 4) point 13, Article 57 point 14, Article 58 paragraph (2) point 15, Article 59 point 16, Article 61 paragraph (1) letter c point 20, Article 66 paragraph 23, Article 79 paragraph (2) letter b point 24 , Article 88 point 25, Article 88A paragraph (7), Article 88B, Article 88C point 30, Article 92 point 37, Article 151 point 38, Article 151A point 42, Article 154A point 44, and Article 156 paragraph (4) letter c of the second part of Chapter IV of the Job Creation Law.
They assert that the Job Creation Law doesn’t have enough basis of academic texts and is not based on a comprehensive analysis of the changes in 79 laws, especially the second part of Chapter IV on Manpower in Law No. 13 of 2003 on Manpower, and doesn’t justify the urgency of the changes to the Manpower Law. They saw the academic texts of the Job Creation Law a mere formality.
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The case No. 107/PUU-XVIII/2020 was by the Indonesian Farmers Union (SPI) and 14 other petitioners. They allege that the planning of the Job Creation Law didn’t meet the formal requirements of lawmaking and that it violates the principle of transparency. Its formulation didn’t involve the general public, instead only did a select few. Even the authenticity of the bill drafts that were disseminated to the public were uncertain.
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Job Creation Law Challenged by 662 Workers
Number of Petitioners of Job Creation Law Reduced
The general chairman of the Federation of Chemical, Energy, and Mine Workers Union - All-Indonesian Workers Union Indonesia R. Abdullah along with 662 other petitioners challenge Law No. 11 of 2020 on Job Creation in the case No. 4/PUU-XIX/2021. The petition has the highest number of petitioners in the Court’s history.
The Petitioners filed for the formal and material judicial review of the law. In the petition, they request that the law be declared in violation of lawmaking provisions according to the 1945 Constitution and, thus, not legally binding. They also request that the Court declare the a quo norms unconstitutional or conditionally unconstitutional and that several articles in Law No. 13 of 2003 on Manpower be declared valid and legally binding.
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Meanwhile, the Petitioners of case No. 6/PUU-XIXI/2021, Riden Hatam Aziz and three others, assert that the Job Creation Law doesn’t have legal certainty because its lawmaking process was formally defective. They believe that the law is unconstitutional because the inclusion of its bill in the Prolegnas (National Legislative Program) didn’t follow the provisions set forth in Law No. 2 of 2011, while its formulation didn’t follow the technical and format requirements as well as the lawmaking principles set forth in Law No. 12 of 2011. The inclusion of the bill No. 11 of 2020 in the Prolegnas cannot be based on the RPJMN (National Medium-Term Development Plan) as referred to in Article 18 letter f of Law No. 2 of 2011 because the RPJMN is only for a period of five years.
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Writer : Nano Tresna Arfana
Editor : Nur R.
PR : Raisa Ayudhita, Fitri Yuliana
Translator : Yuniar Widiastuti (NL)
Translation uploaded on 8/30/2021 13:33 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.