Director-General of Industrial Relations Development Indah Anggoro Putri representing the Government to deliver her testimony at a judicial review hearing of the Law on Industrial Relations Disputes Settlement, Monday (11/27/2023). Photo by MKRI/Ifa.
JAKARTA (MKRI) — The Constitutional Court (MK) held another material judicial review hearing of Law No. 2 of 2004 on Industrial Relations Disputes Settlement (PPHI Law) on Monday, November 27, 2023. The case number 94/PUU-XXI/2023 was filed by Muhammad Hafidz, who challenges Articles 82 and 97 of the PPHI Law.
The hearing was presided over by Chief Justice Suhartoyo to listen to the testimony of the House of Representatives (DPR) and the President/Government. The President/Government was represented by Director-General of Industrial Relations Development and Employment Social Security Indah Anggoro Putri. At the hearing, she said that the loss the Petitioner argued was only an assumption and not an actual one. The Petitioner is not currently experiencing termination of employment nor is he filing a lawsuit to the industrial relations court, which could potentially lead to losses.
Therefore, according to the Government, the Petitioner does not have legal standing. It is appropriate for the Constitutional Court to wisely declare the petition inadmissible (niet ontvankelijke verklaard).
In addition, according to the Government, Article 10 paragraph (1) of Law No. 12 of 2011 as last amended by Law No. 13 of 2022 on the Second Amendment to Law No. 12 of 2011 on Lawmaking states that the content material that must be regulated by law contains further arrangements regarding the provisions of the 1945 Constitution of the Republic of Indonesia; the order of a law to be regulated by law; the ratification of certain international agreements; the follow-up to the decision of the Constitutional Court; and/or the fulfillment of legal needs in society.
“What is meant by ‘follow-up to the decision of the Constitutional Court’ in the elucidation to Article 10 paragraph (1) letter d of the Lawmaking Law is related to the Constitutional Court’s decision regarding the judicial review of laws against the 1945 Constitution of the Republic of Indonesia. The content material, the paragraphs, articles, and/or parts of a law that are stated in the Constitutional Court decision to be unconstitutional,” Indah explained on behalf of the President/Government.
Indah further said that the elimination of a norm is a form of change, while the substance of the content material must be seen in the substance of the deleted norm. Law No. 6 of 2023 on the Stipulation of Government Regulation in Lieu of Law No. 2 of 2022 on Job Creation has changed several provisions in Law No. 13 of 2003 on Manpower.
Article 81 point 51 of the Job Creation Law reads, “Article 159 shall be removed,” and Article 81 point 63 states, “Article 171 shall be removed.” Both are a form of change.
The removal was due to the fact that the article had been declared unconstitutional by the Constitutional Court in Decision No. 12/PUU-1/2003 dated October 28, 2004.
Indah emphasized that Article 171 of Law No. 13 of 2003 was removed in Article 81 point 63 of Law No. 6 of 2023 because the phrase “Article 158 paragraph (1)” in the a quo articles had been declared unconstitutional by the Constitutional Court in Decision No. 12/PUU-I/2003 dated October 28, 2004. This was reinforced by Decisions No. 61/PUU-VIl|/2011 dated November 14, 2011 and No. 114/PUU-XIlI/2015 dated September 29, 2016.
In response to the Constitutional Court’s Decisions No. 12/PUU-I/2003, No. 61/PUU-VIII/2011, and No. 114/PUU-XIll/2015, the legislatures amended the a quo articles by removing them as per Article 81 point 51 of Law No. 6 of 2023, which states “Article 159 shall be removed,” and Article 81 point 63 of Law No. 6 of 2023, which states “Article 171 shall be removed.”
In order to eliminate the duplication of arrangements regarding the deadline of filing a lawsuit to the industrial relations court of a maximum of one year in Article 171 of Law No. 13 of 2003 and in Article 82 of the PPHI Law, the legislatures used this as a basis for removing Article 171 of Law No. 13 of 2003 and Article 81 point 63 of Law No. 6 of 2003. Thus, based on these explanations and considerations, according to the Government, there is no constitutionality issue with Article 82 and Article 97 of the PPHI Law.
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In case No. 94/PUU-XXI/2023, Muhammad Hafidz challenges Article 82 and the phrase “the decision of the Industrial Relations Court” in Article 97 of the PPHI Law.
Article 82 of the PPHI Law reads, “The petition which is filed by the worker/laborer as meant in Article 159 and Article 171 of Law Number 13 of 2003 concerning Manpower may only be submitted within the grace period of 1 (one) year after the decision of the employer is received or informed.”
Article 97 of the PPHI reads, “The obligations that should be carried out and/or the rights that should be received by the parties or by one of the parties on each settlement of the industrial relations dispute are determined in the decision of the Industrial Relations Court.”
The Petitioner explained that the one-year grace period for termination of employment (PHK) lawsuits as stipulated in Article 82 of the PPHI Law is for the reasons referred to in Article 159 and Article 171 of Law No. 13 of 2003 on Manpower.
The Petitioner, who was present without legal counsels, explained his legal standing and constitutional loss. “As a worker who is still actively working in a private company, I have been harmed by the enactment of the material content in Article 82 and Article 97 of Law No. 2 of 2004,” he said.
He asserted that as a private employee, he may experience constitutional loss due to termination for reasons as referred to in Article 82 of the PPHI Law. He could also be potentially deprived of his constitutional rights by the enactment of Article 97 of the PPHI Law while trying to obtain a refund of case fees for a tenure of approximately 9 years with salaries amounting to Rp25,403,800 per month. Thus, if he took into account the compensation for termination of employment for his tenure and salaries, he would be entitled to severance pay and service pay amounting to Rp330,249,400.
Employment Lawsuit Fees
The Petitioner argued that the provisions of Article 58 of the PPHI Law states that the process of litigation in the Industrial Relations Court is not subject to fees as long as the cost is under Rp150,000,000. If the Petitioner wishes to file an employment termination dispute lawsuit to the Industrial Relations Court with a value of severance pay and service pay amounting to Rp330,249,400, he will be charged a case fee, the amount of which has been determined by the Court as an advance court fee.
After paying for the advance court fee, the Industrial Relations Court handed down a verdict to grant the Petitioner’s request and ordered the employer to give the Petitioner his rights. The employer, who lost the case, had to pay for the court fee since the compensation amounted to over Rp150.000.000. The employer implemented the Industrial Relations Court’s decision, which had permanent legal force, but only paid for the Petitioner’s compensation for the employment termination, but objected to the court fee, which the Petitioner had previously paid for as an advance court fee. As such, the Petitioner had lost the money he paid for as an advance court fee when filing the lawsuit.
Thus, if the Petitioner exercises his right to file a dispute over termination of employment to the Industrial Relations Court and pays the court fee, then the lawsuit is granted, the Petitioner, who is in the position of the Claimant, will lose the court fee that has been paid at the time the lawsuit is registered because the obligations that must be carried out as stipulated in the Industrial Relations Court decision do not mention the party who receives the payment of the court fee.
Therefore, in the petitum, the Petitioner requested that the Court declare Article 82 of the PPHI Law unconstitutional and not legally binding and the phrase “the decision of the Industrial Relations Court” in Article 97 of the PPHI Law unconstitutional if not interpreted as “the decision of the Industrial Relations Court, aside from inflicting punishment to the obligation of paying the court fee, shall determine the other party who receive the payment of the court fee to compensate for the advance court fee.”
Author : Utami Argawati
Editor : Nur R.
PR : Tiara Agustina
Translator : Tahlitha Laela/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.
Monday, November 27, 2023 | 15:37 WIB 210