Commissioner at the National Commission on Violence Against Women Andi Yentriyani and Miranda Fajerman testifying as experts for the Petitioners at the judicial review hearing of Law No. 13 of 2003 on Manpower, Wednesday (10/26/2022). Photo by MKRI/Ifa.
Wednesday, October 26, 2022 | 15:55 WIB
JAKARTA (MKRI)—The narrow definition of manpower, which is limited to formal workers, as referred to Article 1 point 3 and Article 1 point 15 of Law No. 13 of 2003 on Manpower has disregarded the rights of homeworkers, which are mostly women, said commissioner at the National Commission on Violence Against Women (Komnas Perempuan) Andi Yentriyani at a judicial review hearing that the Constitutional Court (MK) held on Wednesday, October 26, 2022.
“This disregard has harmed the [homeworkers’] constitutional right to decent work and prosperous livelihood materially and spiritually, which has explicitly and implicitly been mandated to be guaranteed in the Manpower Law,” Andi said before Deputy Chief Justice Aswanto and the other constitutional justices.
She further explained that the impairment that homeworkers suffer due to the narrow definition has a gender dimension, thus affecting women. Aside from losing their general rights as workers, female homeworkers also lose rights that are specific to them, such as the right to maternity leave and to freedom from gender-based violence.
“This condition leads to female homeworkers unable to enjoy equal rights as citizens and humans to work, to a job, and to decent livelihood and to a prosperous live both materially and spiritually as referred to Article 27 paragraph (2), Article 28D paragraph (2) and Article 28H paragraph (1) of the 1945 Constitution, as well as to guarantee of safety as referred to Article 28G paragraph (1) of the 1945 Constitution,” she asserted.
Also read: Five Homeworkers Challenge Manpower Law
Protection of Women’s Rights
Andi emphasized that the rights of female homeworkers must be protected in the Manpower Law. As such, as a country that has ratified the convention on the elimination of all forms of discrimination against women, Indonesia has an obligation to exercise due diligence to ensure corrective steps in revising, repealing, and making laws or regulations in order to bring about substantive justice and equality.
Therefore, she added, employment relations in the Manpower Law needs to be interpreted and not be limited to that between employers and workers but must also to acknowledge that which exists between employers and workers because of a written or verbal order.
“Therefore, I hope that the constitutional justices can grant the Petitioners’ petition in its entirety, at least declare that the Petitioners’ petition admissible and that Article 1 point 15 and Article 50 of the Manpower Law do not conflict with Article 27 paragraph (2), Article 28D paragraphs (1) and (2), Article 27 paragraph (1), and Article 28I paragraph (2) of the 1945 Constitution of the Republic of Indonesia as long as the employment relations in this Manpower Law is interpreted to include that between an employer and a worker or laborer as well as that between an employer and a worker or laborer. If Your Excellencies Constitutional Court justices have another opinion, please make a fair decision,” Andi stressed.
Also read:
Five Homeworkers Challenge Manpower Law
House Explains Definitions of Businessperson and Employer in Manpower Law
ILO Convention
Meanwhile, international labour standards and labour law specialist at ILO’s Eastern Europe and Central Asia Sub-Regional Office Miranda Fajerman said the International Labor Organization (ILO) Convention No. 177 on Home Work had been created in 1996 as a response to substandard work conditions of homeworkers around the world.
The employment of homeworkers correlates with increased flexibility of the labor market and production processes and high rates of underemployment and unemployment. Employers are finding more and more different and flexible ways to hire workers. Recruitment, sub-contracting, and on-call labor practices are widespread and contribute to employment vulnerability. Homework is one example of this practice.
“Home work usually involves employers from legal or non-legal entities providing work through verbal instructions or agreements to homeworkers, especially in the manufacturing sector, but sometimes also in the service industry,” she said.
She believes the difficulties in ensuring homeworkers have decent work and in regulating this type of work are exacerbated by the fact that it is precisely this vulnerable work relation that is often not recorded or monitored and there is lack of appropriate or effective supervisory mechanisms. “This is under the assumption that homeworkers are ‘invisible.’ Convention No. 177 was adopted to address the covert employment of homeworkers and ensure decent work,” he said.
Convention No. 177 is defined as “a person who carries out work in his or her home or in other premises of his or her choice, other than the workplace of the employer; for remuneration; which results in a product or service as specified by the employer, irrespective of who provides the equipment, materials or other inputs used.” This definition, thus, includes general elements of employment that have been decided, remuneration, and subordination.
Fajerman added that the convention distinguishes between homeworkers and other types of workers who perform work in a place other than the employer’s workplace. A worker who “has the degree of autonomy and of economic independence necessary to be considered an independent worker,” in this case an entrepreneur or homeworkers who are responsible for themselves and those who “occasionally performing their work as employees at home, rather than at their usual workplaces,” such as those who work remotely, are not categorized as homeworkers under the convention. She emphasized that Convention No.177 has not been ratified by Indonesia. Nonetheless, it provides an international framework for the minimum standards for home work.
Also read: Work Relations of Homeworkers and Formal Workers Should Be Equal
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 10/27/2022 09:18 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 26, 2022 | 15:55 WIB 329