Saut Christianus Manalu testifying as the Petitioners’ expert virtually at the judicial review hearing of Law No. 13 of 2003 on Manpower, Wednesday (10/12/2022). Photo by MKRI/Bayu.
Wednesday, October 12, 2022 | 15:17 WIB
JAKARTA (MKRI)—Homeworkers should be treated as equal to workers in general, who have work relations with employers in accordance with Article 1 point 3 and Article 1 point 15 of Law No. 13 of 2003 on Manpower. However, because there are some differences in terms of employment with formal workers, the work relations between homeworkers and employers are vulnerable to being disguised and misclassified as not an employment relationship, said Saut Christianus Manalu, an advocate for the Indonesian Consultant Law at the fourth hearing for case No. 75/PUU-XX/2022 on Wednesday, October 12, 2022.
“That’s why equal legal treatment for homeworkers is needed, so that their constitutional rights in labor law are not reduced or lost,” he said virtually before Chief Justice Anwar Usman and the other constitutional justices.
Manalu believes in industrial relations, the most important thing is the entrepreneur who owns the company (business entity) as referred to in Article 1 point 6 of the Manpower Law, workers, and the government. Workers are bound by employment with the employer, have rights and protection from all labor laws and regulations, including access to industrial relations dispute resolution based on Law No. 2 of on concerning Industrial Relations Dispute Settlement (PPHI Law). Significant differences between homeworkers who are not classified as being in industrial relations and workers who are classified as being in industrial relations, among others, are the right to receive wages equal to at least the provincial, city, or regency minimum wages.
Also read: Five Homeworkers Challenge Manpower Law
Employment Agreement Formalities
Manalu also explained that work agreements can be made in writing or verbally, as stipulated in Article 51 paragraph (1) of the Manpower Law. However, the provisions in the Manpower Law, especially those relating to industrial relations dispute settlement, encourage formal work agreements.
“The implementation of Article 54 paragraph (1) of the Manpower Law often results in vulnerable workers or those working in jobs whose work relations are vulnerable to being disguised or misclassified as non-employment getting protection,” he explained.
In addition, Manalu explained, in legal practice that emphasizes formalities, whether intentional by employers or due to limited understanding of the parties, including law enforcement officers, many workers lose or have their rights reduced, thus losing protection over their employment and access to fight for and defend their rights through industrial relations dispute settlement institutions.
To overcome discriminatory treatment of homeworkers, legal action is needed, by expanding the definition of workers to include but not limited to homeworkers as per Article 1 of the ILO Convention No. 177. In addition, he added, in examining employment, all parties must not rely on the formal terms of the agreement, but are also obliged to examine the actual facts regarding the employment, the method of which is, among others, determined in the 2006 ILO Recommendation No. 198. Of all these, the most important thing for homeworkers is the right to work, receive equal legal treatment without discrimination and fair working conditions as stipulated in Articles 27 and 28E of the 1945 Constitution and Article 38 of the Human Rights Law and Consideration letter d, Articles 5, 6 of the Manpower Law.
“Our Manpower Law distinguishes between workers, employers and entrepreneurs, and between manpower and workers. These differences in the end lead to different and even fatal consequences. For example, an entrepreneur is an employer but an employer is not necessarily an entrepreneur because an employer may provide work in the domestic work scheme. There is no business entity there. So, [provider of] domestic work in the 2015 Manpower Regulation is not called an entrepreneur,” Manalu explained.
Also read:
Five Homeworkers Challenge Manpower Law
House Explains Definitions of Businessperson and Employer in Manpower Law
Five homeworkers—Muhayati, Een Sunarsih, and Dewiyah (Petitioners I-III) from Jakarta and Kurniyah and Sumini (Petitioners IV-V) from Cirebon—filed a material judicial review petition to challenge Article 50 of Law No. 13 of 2003 on Manpower. The Petitioners of case No. 75/PUU-XX/2022 are not employed by companies but receive orders of goods/services from intermediaries. In 2017, the Petitioners had an audience with the Ministry of Manpower to question protection for homeworkers as employees and their work relations based on the Manpower Law but the Ministry said the term “homeworkers” was not recognized in the Law.
They believe homeworkers can be categorized as workers following the definition of workers in the Law, but they were considered not having work relations. However, the Ministry of Manpower believed that the characteristics of homeworkers did not meet the requirements for workers within work relations as referred to in Article 1 point 15 of the Manpower Law. Therefore, they believe the Manpower Law has not provided legal protection to homeworkers.
Therefore, in the petitum, the Petitioners requested that the Court grant the entire petition and nullify Article 1 point 15 of the Manpower Law if not interpreted to mean “An employment relation shall be defined as a relationship between an employer and a worker/laborer, which deals with aspects relating to job description, wage, and orders” and Article 50 if not interpreted to mean “Work relations occurs due to work/employment agreement between the employer and the worker/laborer.”
Writer : Utami Argawati
Editor : Lulu Anjarsari P.
PR : M. Halim
Translator : Yuniar Widiastuti (NL)
Translation uploaded on 10/18/2022 08:21 WIB
Disclaimer: The original version of the news is in Indonesian. In case of any differences between the English and the Indonesian versions, the Indonesian version will prevail.
Wednesday, October 12, 2022 | 15:17 WIB 268