Petitioner’s Legal Counsel during Decision Pronouncement Hearing of Case Number 40/PUU-XXII/2024 on the judicial review of Law Number 6 of 2023 on the Stipulation of Government Regulation in Lieu of Law Number 2 of 2022 on Job Creation into Law (Job Creation Law), Thursday (31/10). Photo by MKRI/Bayu.
Jakarta, MKRI – The Constitutional Court pronounced the decision of Case Number 40/PUU-XXII/2023 regarding a petition submitted by 121 petitioners consisting of 10 workers' unions and 111 workers. At the same time, the Decision on Case Number 61/PUU-XXII/2024 was also conveyed regarding a petition submitted by a private employee, Leonardo Siahaan. The Decision Pronouncement Hearing on the Judicial Review of Law Number 6 of 2023 on the Stipulation of Government Regulation in Lieu of Law Number 2 of 2022 on Job Creation into Law (Job Creation Law) was held on Thursday, October 31, 2024.
In the legal consideration of Decision Number 40/PUU-XXII/2023, Deputy Chief Justice Saldi Isra mentioned that the Petitioners argued that the norms of Article 58 in Article 81 point 14 of Law Number 6 of 2023, especially paragraph (2), which added the phrase “the working period is not counted”, which created bias, are null and void, so there is no legal certainty on the status change to a permanent employee (PKWTT). Based on this, the Court opined that Law Number 6 of 2023 has regulated that temporary contracts cannot be applied to all types of jobs. Thus, the temporary contracts are only for work of a type and nature completed within a certain time. If the limitation is violated, then the temporary contract workers (PKWT) should be employed as permanent contract workers (PKWTT). It means that if a probation period Is imposed on PKWT, then it is considered null and void.
The additional phrase “and the working period is counted” will provide legal certainty because it comes as a logical consequence of the existence of “temporary workers” under PKWT, which do not require probation. If the probation is imposed on PKWT workers, the probation will be null and void, and the working period is counted. Meanwhile, if it is related to the absence of legal certainty to turn PKWT to PKWTT, basically, the working period shall be calculated from the first time the worker started to work in the company, which is determined based on an agreement between the company and the worker as stipulated on the work agreement or appointment letter.
Hence, it is improper to impose the requirements for PKWTT to hire PKWT. In other words, the specific requirement for PKWT applies to the type of jobs that fulfill the criteria to hire PKWT. However, in this case, Justice Saldi said, the petitioners confused the requirements for PKWT and PKWTT despite the fact that both are different in terms of the agreement to the termination condition of the work. PKWT may change to PKWTT if it exceeds the agreed period under PKWT due to agreement between parties or legal reasons.
“The additional phrase of “the working period is counted” gives more protection to the workers under PKWT if they are required to undertake probation because their working period is included. The absence of the phrase will cause the workers' loss if PKWT requires probation; hence, the probation is null and void. If the working period is not calculated, it will result in the compensation received at the end of the agreement, which will harm the workers. Based on this legal consideration, the petitioners' arguments a quo are not reasonable based on law,” Justice Saldi explained.
Overtime with Workers’ Approval
Then, Justice Arsul Sani continued on the argument regarding provisions of Article 26 paragraph (1) of Government Regulation Number 35 of 2021 has similar substance to Article 78 on Article 81 point 24 paragraph (1) letter b of Law Number 6 of 2023. The Court declared that the company must avoid imposing overtime on workers because they must have time to rest. However, in specific and urgent cases that cannot be avoided, overtime must be done with the workers’ approval and limited to a maximum of four hours a day and 18 hours per week.
Related to overtime hours stipulated in Article 78 in Article 18 point 24 of Law Number 6 of 2023, the Court considered that it is not an exploitation of workers due to approval from the worker itself. In addition, based on the provision of Article 28 of Government Regulation Number 35 of 2021, to carry out overtime work, there must be an order from the employer and approval from the worker in writing and/or through digital media, which then a list of workers agreed to work overtime can be made and signed by the employer. Then, the employer must also make a list of overtime work containing the names of workers who work overtime and the length of time.
“ According to the Court, the essence of the overtime work is usually implemented due to specific events, such as finishing deadlines or other urgent tasks. It means that overtime is not done all the time. In addition, overtime work must also consider safety and health aspects (K3), and the workers who work overtime must be paid overtime fees according to regulations. Based on the legal considerations above, petitioners’ arguments on the petition is not reasonable based on law,” Justice Arsul said.
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Object Loss
Meanwhile, on Decision Number 61/PUU-XXII/2024, Justice Enny Nurbaningsih said that related to the material judicial review of Article 58 on Article 81 point 12 of Law Number 6 of 2023, especially with the addition of paragraph (3) related to the period and completion of work in the temporary contract (PKWTT) has been decided by the Court under the Constitutional Court Decision Number 168/PUU-XXI/2023. The verdict stated that “the period of time or completion of a certain work .... determined based on the employment agreement” is against the 1945 Constitution of the Republic of Indonesia and is not legally binding as long as it is not interpreted as “the period of completion of a certain work is made not to exceed a maximum of 5 (five) years, including if there is an extension”.
“With the partial approval of the substance of the norms of Article 56 in Article 81 number 12 of Law Number 6 of 2023, especially with the addition of paragraph (3) related to the period or completion of work in a temporary contract (PKWT), which is the object of the petition a quo which has a new meaning that has been in effect since the Constitutional Court Decision Number 168/PUU-XXI/2023 was pronounced, the Petitioner's petition has lost its object,” said Justice Enny.
Author: Sri Pujianti
Editor: Lulu Anjarsari P.
PR: Raisa Ayuditha Marsaulina
Translator: Rizky Kurnia Chaesario
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.
Thursday, October 31, 2024 | 22:41 WIB 211