Leonardo Olefins Hamonangan (Petitioner) at the ruling hearing for the material judicial review of Law No. 13 of 2003 on Manpower, Tuesday (7/30/2024). Photo by MKRI/Ifa.
JAKARTA (MKRI) — The Constitutional Court (MK) rejected the petition No. 35/PUU-XXII/2024 on the material judicial review of Article 35 paragraph (1) of Law No. 13 of 2003 on Manpower. The Petitioner believed the norm had allowed employers to set discriminatory and irrelevant recruitment requirements such as age, sex, and ethnicity.
“[The Court] adjudicated, rejects the Petitioner’s petition in its entirety,” said Chief Justice Suhartoyo alongside the other eight constitutional justices at the ruling hearing on Tuesday, July 30, 2024.
In its legal considerations, delivered by Constitutional Justice Arief Hidayat, the Court explained that discrimination against human rights can be said to have occurred only when there is discrimination based on religion, ethnicity, race, group, class, social status, economic status, sex, language, and political leaning. In other words, requirements relating to age, work experience, and educational background are not discriminatory.
“Therefore, the Court believes [such requirements] do not constitute job discrimination,” Justice Arief said.
However, the Court emphasized that the placement of workers must be regulated in such a way that the basic rights and protections for workers are fulfilled and the regulations must also consider the needs of the business world that can create conditions conducive to its development. To support this, the work placement must be carried out based on the principles of transparency, freedom, objectivity, fairness, and equality without discrimination.
In addition, workers must be placed in appropriate positions in accordance with their expertise, skills, talents, interests, and abilities with due regard to dignity, human rights, and legal protection. Thus, employers who determine certain requirements such as age limits, work experience, and educational background are not discriminatory.
“Moreover, the regulation on prohibition against discrimination against workers has been explicitly stated in Article 5 of Law No. 13 of 2003,” Justice Arief stressed.
Justice Guntur’s Dissent
Meanwhile, Constitutional Justice M. Guntur Hamzah believes the petition should have been partially granted. He said that while the article petitioned does not seem to have any constitutionality issue, upon closer inspection, it could potentially be misused, thus requiring an emphasis on the prohibition against discrimination relating to requirements in work vacancy.
He asserted that the a quo article has clearly led to legal uncertainty for applicants. He highlighted that the phrase “may recruit by themselves the workforce they need” allows employers to make subjective considerations, such as setting up requirements such as “good-looking.” If such arbitrary prerogative was disregarded, despite norms prohibiting discriminatory acts in casu Article 5 of Law No. 13 of 2003, said phrase in Article 35 paragraph (1) of Law No. 13 of 2003 can be categorized as unclear, thus leading to legal uncertainty. He stressed that there should be an emphasis on what type of discrimination cannot be tolerated in work vacancy.
“I believe work vacancy that requires certain age can restrict those who have competence and experience but are hindered by age [requirement]. Not to mention, such restriction is against the principle that I uphold firmly in deciding over cases in the Constitutional Court, which is to give opportunity and abolish restrictions rationally, fairly, and accountably,” Justice Guntur explained.
Also read:
Bekasi Resident Challenges Manpower Law Due to Discriminatory Recruitment Requirements
Petitioner Wishes Job Vacancies Not Set Age Limits
At the petition revision hearing on Monday, March 18, 2024, Bekasi resident Leonardo Olefins Hamonangan (Petitioner) said that Article 35 paragraph (1) of the Manpower Law had resulted in limited access and opportunities for workers to get jobs that fit their skills and expertise. He also argued it had led to legal uncertainty because its vagueness and lack of guidelines can lead to different interpretations in practice and legal conflicts between employers and workers or employers and regulators.
Following the advice of the panel of justice at the previous hearing, the Petitioner also added a comparison of policies prohibiting discrimination in job vacancy requirements in other countries, such as the United States, Germany, and the Netherlands. He said Germany has detailed and clear regulations related to maximum age limits, job requirements, work experience, and others.
“The maximum age limits in vacancies in Germany must be objective, clear, and reasonable. If it is unreasonable, any citizen can file a civil lawsuit. It is unfortunate that Indonesia does not have a special or specific policy giving freedom to its citizens if they experience discrimination over job vacancy requirements,” he argued.
In the petitum, the Petitioner asks that the Court declare Article 35 paragraph (1) of the Manpower Law conditionally unconstitutional and not legally binding if not interpreted as “Employers who need workforce may recruit by themselves the workforce they need or have them recruited through job placement agencies and shall be prohibited from committing any form of discrimination as referred to in Article 5” or “Employers who need workforce may recruit by themselves the workforce they need or have them recruited through job placement agencies and shall be prohibited from creating clauses on the requirements as follows: a. age, b. religion, c. ethnicity, d. tribe, e. race, f. gender, and g. education unless there is a reasonable assessment that is objectively acceptable and justified by laws and regulations” or “Employers who need workforce may recruit by themselves the workforce they need or have them recruited through job placement agencies and shall be prohibited from committing any act, giving any statement or any other kind that gives demeaning impression and can hinder workers from participating in job application selection.”
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.
Tuesday, July 30, 2024 | 14:15 WIB 416