After the Law was signed by the president, the government promptly issued implementing regulations in the form of PP, this time also without involving LKS Tripartit and labor unions. The four PPs are PP 34/2021 on foreign workers, PP 35/2021 on temporary and outsourced workers, layoffs and working hours, PP 36/2021 on wages, and PP 37/2021 on unemployment benefts; all of which were signed on February 2, 2021.
Labor unions, together with other community groups, then fled a judicial review again the Law to the Constitutional Court (MK) so it can be procedurally and substantially examined. During the witness statement, the government presented two witnesses from the labor union circle to support its argument that the process had indeed involved labor unions.
On November 25, 2021, MK gave its ruling through Decision 91/PUU-XVIII/2020 was read out in the courtroom. Four judges of the nine-member bench dissented. Read out by chief judge Anwar Usman, the Court partially accepted the requests submitted by Migrant CARE, the conference of West Sumatra communal elders, the Minangkabau customary court, and Muchtar Said. The Court rules that Job Creation Law was “conditionally” (partly) unconstitutional.
According to MK, the making of the Job Creation Law run counter to the 1945 Constitution and ordered the government to amend parts of the controversial law within two years after the decision was announced. Before then, the Law would remain in force. If no amendment is made within the “grace period,” the Law shall become permanently unconstitutional.
In fact, MK ruling on the Job Creation Law was in itself unprecedented. For the first time, MK judges granted partial approval for a judicial review petition. Before, MK only examined the substance of a law whether or not it violates the Constitution. But with regard to the Job Creation Law, MK did not examine the constitutionality of its substance (the articles).
MK ruling demonstrated that the procedures in the making the Job Creation Act using the omnibus method was contrary to the 1945 Constitution which serves as the basis for Law 12/2011, which does not recognize the omnibus method. Thus, MK ordered lawmakers to rectify the process in the making of the Job Creation Law.
MK decision also proved that the making of the Job Creation Law never involved the public, including the labor unions. Although the government presented its witnesses from the labor union management, MK judges did not seem to believe it, hence the partially unconstitutional ruling.
The government response
In response to MK decision, the government and the House tabled Law 12/2011 in the priority National Legislation Program (Prolegnas). Discussion on the required amendments is underway. One solution is to include the omnibus method in the amendment to Law 12/2011. The government and the House interpret MK ruling by simply amending Law 12.
In my view, the government should respond to MK ruling by inviting the public to re-discuss the entire articles of the Job Creation Law, and sit down with labor unions to discuss problematic articles in the employment cluster. However, to date the government and the House have chosen to only focus on amending Law 12/2011 and shut the door for discussion with the public.
If this is the government’s response to the MK ruling, labor unions will fle another judicial review with the Constitutional Court, and MK judges are likely to deem the Law procedurally faulty again because the public was not involved in its creation.
New strategy for struggle
With the current state of manpower regulations under the Job Creation Law, which has undermined workers’ rights, and the government unwilling to renegotiate the contents of the employment cluster articles of the Law, of course, labor unions must have a better strategy going forward.
The triumph of the 19th-century workers’ movement, which gave birth to International Labor Day, was contingent on the unity of all workers, who shared the same fate and struggle. Workers’ battle strategy must become more integrated with other aspects of society. Building the solidarity of all workers, both unionized and non-unionized, both formal and informal, as well as engagement with journalists, community and religious leaders, is the first step toward improving future labor standards.
Fighting for an increase in the government budget allocation for workers training is a strategy to improve the quality of our workers so that they will have stronger bargaining power before the company management. Technological advancement in the globalization era that upholds market mechanisms must be responded to with work skills and social security.
Workers’ struggle must also be able to improve the performance of government officials in the manpower sector, especially labor inspectors. So far, industrial disputes have arisen due to the weak role of labor inspectors.
Even present regulations, which have weakened workers’ rights and protections, are not being properly implemented. Minimum wage violations, payment of the holiday bonus (THR), freedom of association and assembly, workplace safety and health, and social security violations are still common. Law enforcement and supervision have not been able to ensure that manpower regulations are followed.
The spirit of May Day continues to inspire Indonesian workers in their struggle to improve their welfare and fight for their basic rights. Happy International Labor Day. (Timboel Siregar)