The ruling hearing of the material judicial review of Law No. 2 of 2004 on Industrial Relations Dispute Settlement, Friday (4/14/2023). Photo by MKRI/Ifa.
JAKARTA (MKRI) — The Constitutional Court (MK) rejected the material judicial review petition of Law No. 2 of 2004 on Industrial Relations Dispute Settlement (PPHI) in Decision No. 19/PUU-XXI/2023 on Friday, April 14, 2023 in the plenary courtroom.
In its legal considerations, read out by Constitutional Justice Suhartoyo, the Court asserted that the Petitioners had alleged that Article 19 paragraph (1) letter c of the PPHI Law had resulted in disparity in the age requirements for conciliators and mediators, thus in violation of the principle of equality before law and in government as guaranteed by Article 27 paragraph (1) of the 1945 Constitution, fair legal certainty as guaranteed by Article 28D paragraph (1) of the 1945 Constitution, and protection against discrimination as guaranteed by Article 28I paragraph (2) of the 1945 Constitution.
The Court asserted that, in this case, violation of equality before law and in government occurs when citizens receive different treatments and do not get the same opportunity. The provisions of the Constitution, which guarantee such equality, are regulated further in statutory laws. In this case, the provisions in the PPHI Law have stipulated conditions and requirements that one must meet in order to obtain the right and trust to occupy a certain position.
“As long as those requirements apply to all citizens for the position, there is no violation of the constitutional principle in question,” Justice Suhartoyo added.
Different arrangements on the requirements for conciliators and mediators do not necessarily mean unequal treatment in law and government. This perspective also applies in interpreting discriminatory treatment as meant by Article 28I paragraph (2) of the 1945 Constitution.
“A provision can be said to be discriminatory if there is a different treatment only on the basis of religion, race, ethnicity, group, social status, economic status, sex, language, or political affiliation. Based on that consideration, there is no discrimination on the arrangement of the requirements for conciliators and mediators, where the minimum age limit for mediators is not stated is not a rule that leads to violation of recognition, guarantee, protection, and fair legal certainty as well as equality before the law. Not to mention, both have different duties and come from different human resources, so it is impossible to equate different things,” Justice Suhartoyo explained.
Open Legal Policy
In another consideration, read out by Constitutional Justice Enny Nurbaningsih, the Court explained that the legislatures have the right to set requirements for any position as long as they are not unconstitutional. The minimum age limit for conciliators in Article 19 paragraph (1) letter c of the PPHI Law is the legislatures’ open legal policy that allows for reasonable requirements.
This also applies to other positions in the PPHI Law, such as mediators and arbiters. The Court also asserted that such an open legal policy is not regulated or restricted in the 1945 Constitution and its arrangement is left to the legislatures following the characteristics and needs for the position. Therefore, such a difference is not discriminatory and is not against the principle of equality in law and government, as long as it does not go against the 1945 Constitution, does not exceed the legislatures’ authority, and is not a form of abuse of authority. Therefore, the Court added, there is no constitutional reason for the Court to annul or interpret Article 19 paragraph (1) letter c of the PPHI Law as requested by the Petitioners in the petitum.
Minimum Age Requirement
The Petitioners also alleged that the minimum age requirement of 45 years could potentially eliminate their opportunity to be appointed conciliators and to receive honorarium for prospective conciliators under 45 years old who have met other requirements set in Article 19 paragraph (1) letters a, b, d, e, f, g, h, and i of the PPHI Law and Articles 2, 3, and 4 of the Regulation of the Minister of Manpower (Permenaker) No. 10 of 2005. The Court asserted that the right to receive honorarium is not an absolute right for citizens, but for certain professions. The right to honorarium belongs to the conciliator profession and without an appointment to become one, any citizens do not have such a right.
“Therefore, in relation to the legal consideration in sub-paragraph 3.11.1 above, because the enactment of the minimum age requirement for conciliators is not unconstitutional, the Petitioners not being appointed conciliators was not a violation to the citizens’ constitutional rights, including the right to decent job and earnings as guaranteed by Article 27 paragraph (2) of the 1945 Constitution. Based on the legal consideration, the Petitioners’ a quo argument was legally groundless,” Justice Enny explained.
Number of Conciliators
The low number of conciliators or industrial relations, which urgently requires recruitment by making an exception to the minimum age limit, was not a constitutionality issue, the Court asserted. The low number cannot be connected to age requirement or other requirements as referred to in Article 19 of the PPHI Law, not to mention the requirements for conciliators are cumulative.
“The fulfillment of a certain requirement does not negate other requirements since they are a unity that must be fulfilled as considered in sub-paragraph 3.11.1. Therefore, the filling of conciliator vacancies in the implementation of Law No. 2 of 2004 is irrelevant to the constitutionality of the minimum age requirement for conciliators, so it is not appropriate to be used as a reason to annul or declare Article 19 paragraph (1) letter c of the PPHI Law unconstitutional,” Justice Enny explained.
Meanwhile, the factual issue where the Petitioners were invited and ordered to follow recruitment process despite not meeting the requirement and thus cannot be appointed as conciliators was an issue of norm implementation, not of constitutionality. In this case, the inviter must provide the Petitioners with clear information before the recruitment process. “Based on the aforementioned legal consideration, the Petitioners’ argument was legally groundless,” Justice Enny stressed.
Also read:
Minimum Age for Industrial Relation Conciliators Questioned
Industrial Relations Conciliators Revise Petition against PPHI Law
At the preliminary hearing on Thursday, February 23, the Petitioners revealed 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.
The Petitioners were eligible to be prospective conciliators, but their appointment was not 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. 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. The Petitioners believed that this hindered the achievement of the goal of a conciliatory institution, which is to resolve industrial relations disputes swiftly, effectively, fairly, and economically.
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.”
Author : Utami Argawati
Editor : Lulu Anjarsari P.
PR : Andhini S. F.
Translator : Yuniar Widiastuti (NL)
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.
Friday, April 14, 2023 | 18:45 WIB 152