Interpreting Perppu 2/2022
MK Decision 91 called on the Government and the House to amend Law 12/2011 on the drafting of laws and regulations, so the omnibus law method used to create the Job Creation Law can have a legal basis. Secondly, the Government is required to involve civil society in the discussion to amend the law, in order to fulfils the provision of Article 96 of Law 12/2011.
In response to MK rulings, the Government and the House have amended Law 12/2011 by incorporating the omnibus law method in Law 13/2022, but they have yet to provide maximum space for public participation and consultation in the revision process. The Government and the House should urgently review the Job Creation Law by involving the public and other stakeholders, so the MK decision can be fulfilled before the deadline on November 25, 2023. For the employment cluster, this means that the Government and the House must involve the labor unions (SP/SB) in the discussion.
The issuance of Perppu 2 runs counter to the principle of engaging the citizens in consultation of legislation. It is as if they are not considered legal subjects who have the right to provide input in the making of laws and regulations which should be carried out in a democratic and open manner.
On the contrary, Perppu 2 actually changed several articles in the employment cluster, including by bringing back Article 64 on outsourcing which was previously removed in the Job Creation Law. Furthermore, Article 64 doesn’t provide certainty on the use of outsourced labor, namely only for support functions, as stipulated by Law 13/2003 on manpower.
Article 64 only mandates the Government to designate parts of the outsourcing requirements with further implementation, to be provisioned via government regulations. Previously, this was regulated by the manpower law. This doesn’t give a sense of certainty because a Government Regulation (PP) can be changed at any time by the Government.
Another employment-related matter now regulated by a government regulation (PP 35/2021) is the layoff payoff. This will create uncertainty and reduce employment protection for workers, contributing to heightened job insecurity.
Secondly, changing the title of Chapter X, Paragraph 1, as well as Article 67 into “people with disabilities,” from “disabled people” in Law 13/2003 to align with Law 8/2016. This is one example of carelessness on the part of the Government and the House for failing to synchronize the content of the Job Creation Law with other laws.
Third, the Job Creation Law does not revise Article 84 of Law 13, but Perppu 2 includes the revision of Article 84, which now reads “Every worker/ laborer who uses their right as referred to in Article 79 paragraph 2, point b, paragraph 3, paragraph 5, Article 80 and Article 82 shall receive his/her wages in full” from provision in the manpower law which reads “Every worker/ laborer who uses their right to take the period of rest as specified under points b, c and d of paragraph 2 of Article 79, Article 80 and Article 82 shall receive her wages in full.”
The provisions in Article 79 of Law 13 contains the points (a), (b), (c) and (d), but after being revised in the Job Creation Law Article 79(2) it only contains points (a) and (b). This means that Article 84 of Law 13 is not in line with Article 79 (2) of the Job Creation Law. This inconsistency has been revised in Perppu 2. It also shows the incompetence of the Job Creation Law drafters.