The Petitioners’ legal counsels at the preliminary hearing of the material judicial review of Law No. 2 of 2004 on Industrial Relations Dispute Settlement, Thursday (2/23/2023). Photo by MKRI/Ifa.
Thursday, February 23, 2023 | 20:38 WIB
JAKARTA (MKRI) — The Constitutional Court (MK) held the preliminary hearing of the material judicial review of Law No. 2 of 2004 on Industrial Relations Dispute Settlement (PPHI) on Thursday, February 23, 2023. The case No. 19/PUU-XXI/2023 was filed by Nandang Rakhmat Gumilar, Bayu Alhafizh Nurhuda, Achmad Rizki Zulfikar, Muhammad Alfian, and Sofyan Hadimawan (Petitioners I-V), industrial relations conciliators. They challenge Article 19 paragraph (1) letter c of the PPHI Law, which reads, “is at least 45 years of age.”
Through counsel Muhammad Iqbal Sumarlan Putra, the Petitioners asserted that on December 6, 2021, the acting Director for Industrial Relations Dispute Settlement of the Directorate-General for Industrial Relations Development and Social Security of the Ministry of Manpower sent an invitation letter No. Und.103/HI.04.02/XII/21 to discuss the pre-recruitment process of prospective industrial relations conciliators to identify interest in the vocation among non-civil servants (PNS) or contract staff in industry areas as well as its budget.
Minimum Age Requirement
The Petitioners are eligible to be prospective conciliators, but their appointment has not been approved by the Minister of Manpower. Only after the Bekasi Regency Manpower Office sent a letter on the technical assistance program of prospective conciliators of Bekasi did they found out why: the minimum age required by the PPHI Law was 45 years.
“The minimum age requirement for conciliators is higher than that for ad hoc judges in the Industrial Relations Court and the Supreme Court, which is ‘at least 30 (thirty) years of age’ based on Article 64 letter d of Law No. 2 of 2004,” Iqbal said before Constitutional Justices Enny Nurbaningsih (panel chair), Suhartoyo, and M. Guntur Hamzah.
The determination of this age requirement was baseless, the Petitioners asserted, since age does not determine one’s competency. For conciliators, they argued, other requirements referred to in Article 19 paragraph (1) letters a, b, d, e, f, g, h, and i of the PPHI Law and Articles 2 and 3 of the Manpower Minister Regulation No. 10 of 2005 are sufficient to prove a conciliator’s competency in resolving industrial relations disputes.
“The determination of this age requirement clearly harms the right of prospective conciliators under 45 who have met all [other] requirements in the a quo Law. In addition, there is an urgency to appoint conciliators because since 2021, there are only 17 conciliators in Indonesia. This clearly hinders the achievement of the goal of a conciliatory institution, which is to resolve industrial relations disputes swiftly, effectively, fairly, and economically,” Iqbal stressed.
Disparity of Minimum Age Requirement
Iqbal stressed that the minimum age had caused the Petitioners loss, especially compared to that for mediators. He went on to illustrate the disparity between the minimum age requirements for conciliators and that for mediators in industrial relations disputes, which is 18 to 35.
Furthermore, prospective conciliators are required to have five years of experience in industrial relations, while prospective mediators are only required to have one year of experience or experience in at least 10 cases of industrial relations disputes.
In addition, mediators can handle more types of cases than conciliators can, such as disputes over rights, disputes over interests, disputes over termination of employment, and disputes between trade unions/labor unions in one company. What distinguishes mediators and conciliators is that conciliators cannot handle disputes over rights. Such vast jurisdiction should require mediators to have more experience than what is currently required of them.
Iqbal further explained that even ad hoc judges and arbiters in the Industrial Relations Court are required to have five years’ worth of experience and advocates must intern continuously for two years in order to practice.
The Petitioners questioned whether it would be possible for mediators to handle such with only one years’ worth of experience or experience assisting the resolution of 10 industrial relations dispute cases. They asserted that prospective conciliators would be more outstanding in resolving industrial relations disputes with more experience. They also pointed out the unfairness for prospective conciliators with such an age requirement.
In the petitum, the Petitioners requested that the Court declare Article 19 paragraph (1) letter c of the PPHI Law unconstitutional and not legally binding if not interpreted to include “prospective conciliators who have met all requirements set in Article 19 paragraph (1) letters a, b, d, e, f, g, h, and i of the Law on Industrial Relations Dispute Settlement.”
Justices’ Advice
Constitutional Justice Suhartoyo said the petition was orderly and substantive, but he recommended that the Petitioners follow the Court’s standard format.
“There is no need to formulate it this way, where the touchstone, object, and juridical arguments are separate. They are all part of the posita or background to the petition. So, please reconstruct [the petition],” he said.
Constitutional Justice M. Guntur Hamzah expressed the same sentiment. He highlighted that the format of the petition was unlike that set out in the Constitutional Court Regulation (PMK). “There is no need to improvise on format. Just follow the format set out in the PMK,” he said.
He also advised that the Petitioners exercise caution in providing interpretation. “The Petitioners stated that mediators, whose responsibilities exceed those of conciliators, can be younger, [at least] 18 years old, while conciliators [at least] 45. This type of argument is not apple-to-apple. There can be a bias there. It is not necessary that when the responsibilities are more the age limit must be higher too, and vice versa. This could be a biased interpretation. So, please be careful in providing interpretation,” he stressed.
Before adjourning the session, Constitutional Justice Enny Nurbaningsih informed the Petitioners that they had 14 workdays to revise the petition. “The revised petition, hardcopy or softcopy, must be submitted by March 8, 2023 at 13:30 WIB,” she stressed.
Writer : Utami Argawati
Editor : Nur R.
PR : Andhini S. F.
Translator : Yuniar Widiastuti (NL)
Translation uploaded on 2/27/2023 15:55 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.
Thursday, February 23, 2023 | 20:38 WIB 278