Constitutional Justices Arief Hidayat, Daniel Yusmic P. Foekh, and Arsul Sani presiding over a preliminary judicial review hearing of the Manpower Law, Tuesday (3/5/2024). Photo by MKRI/Panji.

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JAKARTA (MKRI) — A Bekasi resident, Leonardo Olefins Hamonangan, has filed a material judicial review petition of Article 35 paragraph (1) of Law No. 13 of 2003 on Manpower to the Constitutional Court (MK). He believes the norm has allowed employers to set discriminatory recruitment requirements that prevent him and other applicants from getting a job.

“[I believe] the article has led to many Indonesians companies setting job requirements that restrict [me] from getting a job, for example work experience or minimum age limit,” he said before Constitutional Justices Arief Hidayat, Arsul Sani, and Daniel Yusmic P. Foekh on Tuesday, March 5, 2024.

Article 35 paragraph (1) of the Manpower Law reads, “Employers who need workforce may recruit by themselves the workforce they need or have them recruited through job placement agencies.” The Petitioner of case No. 35/PUU-XXII/2024 believes this norm is against Article 28D paragraph (2) of the 1945 Constitution.

He explained that the enforcement of the article has led to Indonesian companies setting job requirements that keep him from finding a job, such as work experience or minimum age. He also talked about the normalization of discrimination based on age (ageism).

In the workplace, ageist requirements most harm female workers, especially those who decide to take leave for marriage, maternity leave, and leave for childrearing. The decision could restrict them from pursuing career because they may be past the age limit required for the job.

Many countries have banned ageist practices in the workplace based on the understanding that age is a poor predictor of performance and is often unrelated to employability. Whether or not someone can work in a position should be based on their competencies, qualifications, and skills. However, in Indonesia, age restrictions in job vacancies are considered normal.

The Petitioner argued that the enactment of the norm can lead to more unemployment in Indonesia. He revealed that based on data by the Central Statistics Agency (BPS), open unemployment rate (TPT) is at 5.32% and the average labor wage is 3.18 million rupiahs per month.

In addition, the Government still allows discriminatory job vacancy requirements and has not implemented the 1958 ILO Convention (Number 111) regarding discrimination in employment and positions. In general, the article in the ILO Convention gives the state the responsibility to ensure that there is no discrimination in the recruitment process until the employment relation is built.

However, the Government often announces job vacancies whose requirements include an age limit. The Petitioner revealed that on its Instagram account @kemnaker, the Ministry of Manpower displayed job vacancies from a number of companies that included a maximum age limit.

In his petitum, the Petitioner requested that the Court declare Article 35 paragraph (1) of Law No. 13 of 2003 on Manpower unconstitutional and not legally binding if not interpreted as “Employers who need workforce shall give fair opportunity to all qualified job seekers and shall be prohibited from setting up requirements that discriminate against the applicant’s age, background, work experience, gender, religion, race, and sexual orientation. Employers shall also be required to conduct a transparent and objective selection process in selecting candidates who are best suited to the needs of the available jobs” or “Employers who need workforce may recruit themselves and shall be prohibited from setting up requirements that limit age, work experience, religion, or other requirements that hinder workers from participating in the selection for the vacancy.”

Justices’ Advice

In response, Constitutional Justice Arsul Sani highlighted whether an age limit constitute discrimination. He said the Petitioner must be able to explain what constitutes discrimination, as the Law on Human Rights defines it as different treatment due to religion, tribe, race, ethnicity, group, class, social status, economic status, gender, language, and political beliefs. “We have to be careful to declare whether something is discriminatory,” he said.

The constitutional justices also highlighted the inconsistency between the posita (background) and the petitum. In the petitum, the Petitioner did not only mention the prohibition against age limit requirement, but also work experience, gender, religion, race, and sexual orientation. Meanwhile, in the posita, he did not explain the reason relating to those matters. “These are not explained or elaborated in the posita but are mentioned in the petitum,” Justice Arief Hidayat said.

At the end of the hearing, the panel gave the Petitioner 14 days to revise the petition. The next hearing would discuss the revisions to the petition.

Author       : Mimi Kartika
Editor        : Lulu Anjarsari P.
PR            : Fauzan Febriyan
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.

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