Petitioners’ Expert: Seafarers Are Not Migrant Workers

Matthew Michele Lenggu, legal counsel of the Indonesian Migrant Seafarers Advocacy Team (Relevant Party) at a judicial review hearing of the Law on the Protection of Indonesian Migrant Workers, Tuesday (2/6/2024). Photo by MKRI/Bayu.

JAKARTA (MKRI) — The International Labor Organization (ILO) has established a separate legal regime for migrant workers on land that excludes seafarers from the list of migrant workers. For seafarers, the ILO has created a special Bill of Rights through the Maritime Labor Convention 2006 (MLC 2006) that comprehensively provides protection for seafarers, regulates businesses in the sector and the responsibilities of states parties to the convention.

The statement was made by Saru Arifin, a law lecturer at the State University of Semarang (UNNES) in Central Java Province, for the Petitioners at the fourth hearing for the judicial review of Law No. 18 of 2017 on the Protection of Indonesian Migrant Workers (PPMI Law) as amended by Law No. 6 of 2023 on the Stipulation of the Government Regulation in Lieu of Law No. 2 of 2022 on Job Creation into Law in case No. 127/PUU-XXI/2023 on Tuesday, February 6, 2024. The hearing took place in the Constitutional Court’s plenary courtroom with Chief Justice Suhartoyo, Deputy Chief Justice Saldi Isra, and six other constitutional justices presiding.

Furthermore, in his statement, Saru explained that normatively and theoretically, seafarers are not classified as migrant workers, which is consistently emphasized in three ILO Conventions: Convention C-097 of 1949, Convention C-143 of 1975 and the 1990 ILO Convention on the Protection of Migrant Workers and Their Families. Therefore, Article 4 of the PPMI Law and the current technical policy on labor migration governance through Government Regulation (PP) No. 22 of 2022, which classifies seafarers as migrant workers, are not in line with the provisions of the three conventions above as international regulations in labor migration for migrant workers on land.

Saru asserted that as a state party to both conventions, Indonesia should be consistent in implementing them in national legislation. The technical implication of changing the status of seafarers to migrant workers in the 2017 PPMI Law is disharmony of regulations in the implementing regulation, PP No. 22 of 2022, whose several articles are disharmonious with PP No. 31 of 2021 on shipping. As a consequence, seafarers bear the burden of additional licensing administration obligations as well as time and costs. This could potentially lead to the possibility of ‘sidelining’ Indonesian seafarers in filling job positions on foreign vessels, as ship owners will recruit seafarers from other countries who can respond more quickly. In addition, crew recruitment and placement agency companies will have to increase their business licenses to match the licensing pattern of land-based Indonesian migrant worker agency companies.

Therefore, he continued, in order to maintain institutional harmony in the management of both land-based and sea-based labor migration in Indonesia, Article 4 of the PPMI Law needs to be reviewed (judicial review or political review) by excluding seafarers from migrant workers and as emphasized in Article 4 paragraph 2 of the 2017 PPMI Law, along with a number of other workers who are excluded from the list of migrant workers. This is also intended to maintain legislative consistency between the 2017 PPMI Law and the three ILO conventions as the parent legislation and management of international labor migration.

The hearing also heard testimony by Matthew Michele Lenggu, legal counsel of the Indonesian Migrant Seafarers Advocacy Team (TAPMI) as Relevant Party. Lenggu said that migrant commercial and fisheries crew members can only be excluded from migrant worker groups if they do not work outside the territory of the Republic of Indonesia (vide Article 1 point 2 of the PPMI Law), have not obtained a residence permit, and have not carried out paid activities in the destination country as stipulated in Article 3 letter f of Law No. 6 of 2012 on the Ratification of the International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families.

Lenggu said the two conditions as stipulated in Article 3 letter f of Law No. 6 of 2012 have been fulfilled for crew members working on foreign vessels, i.e. obtaining the electronic Indonesian migrant worker (E-PMI), which is the official identity of migrant workers, as stipulated in Article 33 of the Indonesian Migrant Workers Protection Agency (BP2MI) Regulation No. 7 of 2022 on the pre-employment process for prospective Indonesian migrant workers as well as wages that have been agreed upon by migrant crew members and employers based on sea work agreements or joint work agreements.

Furthermore, the requirement for professional qualifications for seafarers, in this case migrant crew members, cannot be used as an excuse for crew members to be excluded from migrant workers, because all prospective migrant workers, regardless of the type of work, are required to obtain job training (vide Article 34 letters a, b, c, and d of the PPMI Law), which is proven by a certificate of competence so that the prospective migrant workers concerned have professional qualifications in carrying out their work in the destination country.

So according to the Relevant Party, the Petitioners’ argument that seafarers have different features so that they are excluded from migrant workers is an argument that has no basis at all. Therefore, the Relevant Party requested the Court to reject the Petitioners’ petition in its entirety.

According to the Relevant Party, licensing dualism that the Petitioners are concerned about has nothing to do with the status or position of seafarers as migrant workers. The absence of licensing or licensing dualism should not result in the seafarers’ status as migrant workers being completely lost. If migrant commercial and fisheries crew members is no longer considered as migrant workers, there will be a legal vacuum for migrant crew members in demanding their rights. Meanwhile, Law No. 17 of 2008 on Shipping does not regulate the rights of migrant crew members as Indonesian migrant workers. On this basis, the Relevant Party, asserted that Article 4 paragraph (1) letter c of the PPMI Law are not contrary to the principle of legal certainty and they requested the Court to reject the petition.

Also read:

AP2I, Ship Crew Agent Object to Inclusion of Fishing Crews as Migrant Workers

Mandatory Work Visa Burdens Indonesian Seamen

PPMI Law Protects Ship and Fishing Crews from Human Trafficking

On Wednesday, October 11, the Court held the preliminary material judicial review hearing of Article 4 paragraph (1) letter c of Law No. 18 of 2017 (PPMI Law). The case No. 127/PUU-XXI/2023 was filed by chairman of the Association of Indonesian Fishery Workers (Asosiasi Pekerja Perikanan Indonesia or AP2I) Imam Syafi’i, Untung Dihako, and PT Mirana Nusantara Indonesia director Ahmad Daryoko (Petitioners I-III).

The Petitioners argue that Article 4 paragraph (1) letter c of the PPMI Law (“Migrant workers of Indonesia shall include: … c. ship crews and fishing crews.”) is against Article 28D paragraphs (1) and (2), Article 28G paragraph (1), and Article 28I paragraph (1) of the 1945 Constitution.

Petitioner I believes that the enforcement of the norm has led to overlapping regulations at several levels, such as Law No. 17 of 2008 on Shipping, Government Regulation (PP) No. 22 of 2022 on the Placement and Protection of Migrant Commercial Ship Crews and Migrant Fishing Ship Crews. The transfer of authority on shipping from the Ministry of Transportation to the Ministry of Manpower and the Indonesian Migrant Worker Protection Agency (BP2MI), so that the guarantee of protection and rights for ship crews and fishing crews that has been formulated in shipping statutory legislation cannot be applied.

The ship crew agency company of Petitioner III has also been harmed by the a quo norm. He was obligated to have a migrant worker recruitment permit issued by the head of the BP2MI as referred to in Article 72 letter c of the PPMI Law. Due to this provision, he was declared a suspect and is undergoing detainment process with the investigators of the Police Criminal Investigations Directorate of Central Java on a human trafficking charge.

In addition, the norm could potentially harm him in doing ship crew agency business. He used to cooperate with foreign ship crew agencies of countries that Indonesia both does and does not have diplomatic ties.

Therefore, in the petitum, the Petitioners request the Court to declare Article 4 paragraph (1) letter c of the PPMI Law as amended by the Job Creation Law in violation of Article 28D paragraphs (1) and (2), Article 28G paragraph (1), and Article 28I paragraph (1) of the 1945 Constitution and not legally binding.

Author       : Utami Argawati
Editor        : Nur R.
PR            : Tiara Agustina
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.

Tuesday, February 06, 2024 | 17:25 WIB 42
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