WORKERS RIGHTS’
IMPLICATIONS WHO HAVE EXPERIENCED TERMINATION OF EMPLOYMENT ACCORDING TO THE
LAW NUMBER 13 OF 2003 CONCERNING EMPLOYMENT
Asuan*, Rizayusmanda
Faculty of Law, Universitas Palembang, South Sumatera, Indonesia
Email: [email protected]*,
[email protected]
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Article
Information |
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ABSTRACT |
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Received: December 12, 2022 Revised: December 21, 2022 Approved: January 11, 2023 Online: January 26, 2023 |
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This journal
entitled Implications of the Rights of Workers Who Experiencing Termination
of Employment (PHK) According to Law Number 13 of 2003 concerning Manpower
discusses legal remedies that can be taken by workers who experience
Termination of Employment (PHK) as a result of not fulfilling their rights by
employers and legal sanctions against employers who violate workers' rights
based on Law Number 13 of 2003 concerning Manpower. The
results of this study indicate that workers can submit legal remedies to
employers not giving rights due to layoffs mentioned in Article 171 of Law
no. 13 of 2003 concerning Manpower, namely workers/laborers who experience
termination of employment without the establishment of an industrial
relations dispute resolution institution and administrative (bipartid)/civil
measures and legal sanctions against employers who violate workers' rights as
a result of layoffs, namely criminal and administrative sanctions. Article
189 Criminal sanctions of imprisonment, confinement and/or fines do not eliminate
the obligation of employers to pay rights and/or compensation to workers or
workers/laborers and Article 190 paragraph (2) namely administrative
sanctions, namely warnings, written warnings, restrictions on activities
business, freezing of business activities, cancellation of approval,
cancellation of registration, temporary suspension of part or all of the
means of production, up to revocation of permits. |
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Keywords |
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legal protection; termination of employment; workers' rights |
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INTRODUCTION
Employment
agreement according to Law Number 13 of 2003 Article 1 Number 14 is an
agreement between the worker and the employer or employer which contains the
terms of employment.
The rights and obligations of
both parties, namely the rights and obligations of workers as well as the
rights and obligations of entrepreneurs (Hamid, 2021).
Work
agreement is an agreement between a worker and an employer, which agreement is
marked by the characteristics of the existence of a certain wage or salary that
was agreed upon and the existence of an elevated relationship (Dutch
"dierstverhanding"), namely a relationship based on which one party
(employer) has the right to give orders that must be obeyed by other parties
(workers) (Subekti,
2014).
Work
agreements, which in Dutch are often referred to as arbeidsovereenkoms, can be
interpreted in several ways (Rivera, 2017).
This definition is stated in Article 1601a of the Civil Code (KUH Perdata). That is "employment agreement is an
agreement in which one party, the worker, binds himself to be under the orders
of the other party, the employer for a certain time, to do work for a fee.
From this understanding it
can indeed be said that between the owner of capital (employers) and the
worker/ killer
do have a relationship that is mutually dependent on one another, the worker/ laborer will get a wage if he
works according to the employer's orders and the employer will provide wages if
the workers work according to his orders (Putra, 2017).
Employment agreements based
on the understanding of Law Number 13 of 2003 concerning Manpower does not
state the form of the agreement in writing or verbally, as well as regarding
the time period to be determined or not as previously stipulated in Law Number
25 of 1997 concerning Manpower (Khoe, 2013).
The work agreement does not require a specific form.
Law No. 13 of 2003 has been adapted to the development of reforms,
especially those concerning the right to associate/organize, settlement of
industrial disputes. In this manpower law the terms laborer and employer are no
longer found, but have been replaced by the terms worker and entrepreneur. In
Article 1 (paragraph 1) of Law No. 13 of 2003 concerning Manpower what is meant
by employment is Employment is all matters relating to manpower before, during
and after the working period (Article
1 Law No. 13 of 2003 concerning Manpower, page 294). Based on this definition of employment, it
can be formulated that the meaning of Labor Law is all legal regulations
relating to labor both before work, during or during work relations, and after
work relations. only with regard to the legal relationship between workers and
employers in work relations only.
It can be done verbally, with
a letter of appointment by the entrepreneur or in writing, namely a letter of
agreement signed by both parties. The law only stipulates that if the agreement
is made in writing, the cost of letters and other additional costs must be
borne by the entrepreneur. Moreover, agreements made orally, even written
agreements are usually held very briefly, do not contain all the rights and
obligations of both parties. Based on the research background above, the
authors formulate several problems as follows; (1) what
are the legal remedies that can be taken by workers who have experienced
layoffs (termination of employment) due to non-fulfillment of their rights by
employers based on Law Number 13 of 2003 concerning Manpower, and (2) what
are the legal sanctions against employers who violate workers' rights based on
Law Number 13 of 2003 concerning Manpower.
METHODS
The research method in this
thesis uses normative research methods or also called library research or
document studies (laws and regulations), which are aimed at approaching the
principles or principles of applicable law by proving the articles. According to the opinion of
Soerjono Soekanto'. descriptive research intendedto
provide researched data, which means reinforcing hypotheses that can help old
theories or in the framework of developing new theories (Soekanto,
2010). Data source is the subject
from which the data can be obtained, in this case the data source is divided
into three sources, namely:
1. Primary
legal materials, namely binding legal materials in the form of statutory
regulations in the field of agreements.
2. Secondary
legal materials, namely legal materials that provide an explanation of primary
legal materials, namely the work of legal experts in the form of books,
opinions of scholars related to this research (Hanitijo,
1988).
3. tertiary
legal materials, namely materials that provide instructions and explanations of
primary and secondary legal materials in the form of legal dictionaries, legal
journals, encyclopedias, legal magazines and so on (Soekanto,
2010).
Sewhereas data processing
techniques are carried out by processing data obtained from the study of laws
and regulations and then linked to the problems that have been formulated.
RESULTS
A. Legal
Remedies for Workers Who Have Been Termination of Employment (PHK) Are Not
Fulfilled by Employers According to Number 13 of 2003 concerning Manpower
Employment
is very complex and varied, due to the fact that the working relationship
between employers/employers and workers/ laborers does not always work in
harmony. Labor issues contain economic, social welfare, and socio-political
dimensions (Sutedi, 2009).
One
of the most common labor problems to date is termination of employment or layoffs.
According to Law no. 13 of 2003 concerning Manpower Article 1 point 25 explains
that "Termination of Employment is the termination of an employment
relationship because of a certain matter which results in the end of the rights
and obligations between the worker/laborer and the entrepreneur" (Turangan, 2016).
According
to Lalu Husni, layoffs are
an event that is not expected to occur, especially among workers/workers
because with layoffs the worker/worker concerned will lose his livelihood to
support himself and his family, therefore all parties involved in industrial
relations, both employers, workers/ labourers, or the
government, with all efforts must try to avoid termination of employment (Husni, 2010).
In Porigin
1 point 25 Law Number 13 of 2003 concerning Manpower, states that:
"Termination of employment is termination of employment because of a
certain matter which results in the end of the rights and obligations between
the worker/worker and the entrepreneur". Termination of employment for the
workers/ labourers will have a psychological,
economic, financial impact (Zainal, 2010).
According to Law no. 13 of 2003 Manpower which regulate s Termination
of Employment (PHK) in Article 164 paragraph one (3) states thatEntrepreneurs
can terminate employment relations with workers/laborers due to: the company closes not
because it has suffered losses for 2 (two) consecutive years or not due to
force majeure but the company has implemented efficiency, provided that
workers/labor are entitled to severance pay of 2 (two) times the provisions of Article
156 paragraph (2) , compensation for tenure of 1 (one) time under the
provisions of Article 156 paragraph (3) and compensation for rights according
to the provisions of Article 156 paragraph (4) arrangements for workers who
experience termination unilaterally should not be carried out unilaterally and
arbitrarily, but dismissals can only be carried out for certain reasons after
efforts have been made that layoffs do not need to occur.
A form of legal protection for workers in Indonesia who
have experienced termination of employment has been reflected in Law no. 13 of
2003 concerning Employment in Article 164 paragraph (1) which regulates legal
protection for workers who are given the right to compensation, severance pay, and pensions (Article 164 Paragraph 1
Law no. 13 of 2003).
From the description above, if
the employer does not fulfill the obligations towards the worker when he is
terminated as stated in Chapter 12 of the Manpower Act concerning layoffs,
which is specifically explained in Article 164 paragraphs 1, 2 and 3, the
worker can file legal remedies as stated in Article 171Workers/laborers who experience termination
of employment without the establishment of an
authorized industrial relations dispute resolution institution as referred to
in Article 158 paragraph (1), Article 160 paragraph (3), and Article 162, and
the worker/laborer concerned cannot accept the termination of employment
mentioned above, the worker/laborer can file a lawsuit with the industrial
relations dispute settlement institution within a maximum period of 1 (one)
year from the date the employment relationship was terminated.
The institution for the
settlement of industrial relations disputes has not yet been formed, if it
turns out that workers do not get their rights, based on the provisions of Law
Number 2 of 2004 concerning the Settlement of Industrial Relations Disputes
(PPHI), the institution referred to is the Industrial Relations Court, then
administrative or civil remedies can be carried out (Wijayanti,
2009).
Legal remedies through
administration, resolution can be through bipartite efforts made between
workers and employers as parties bound in an employment relationship. If the
negotiation reaches an agreement, then the result of the agreement has an
agreement, so you can ask for approval from the Local Manpower Office.
In addition, civil legal
remedies can be taken by workers if the employer's decision to lay off
employees due to efficiency cannot be justified. In the sense that no initial
steps have been taken to avoid efficiency in the number of workers (Wahyuono
& Wahjuningati, 2022).
Civilly, workers can file a claim for compensation to the District Court based
on article 1365 of the Civil Code, namely: "Any unlawful act that causes
harm to another person, obliges the person who because of the mistake to issue
the loss, compensate for the loss". Since the existence of Law Number 2 of
2004 concerning Industrial Relations Dispute Settlement (UUPPHI) (Wijayanti,
2009).
1. Bipartite
If a dispute has not been
submitted to a dispute resolution institution, every dispute must be resolved
in a bipartite manner, namely deliberation between workers and employers. Based
on the provisions of Article 1 point 10 UUPPHI, bipartite negotiations are
negotiations between workers/laborers or trade unions/ labor unions and employers to
resolve industrial relations disputes. Bipartite efforts are regulated in Articles
3 to 7 of Law Number 2 of 2004 concerning Settlement of Industrial Relations
Disputes.
2. Mediation
Based
on the provisions of Article 1 number 11 UUPPHI, industrial relations
mediation, hereinafter referred to as mediation, is the settlement of rights, disputes
over interests, disputes over interests, disputes over termination of
employment. and disputes between trade unions/labor unions within one company
only through deliberations mediated by one or more neutral mediators. Mediation
efforts are regulated in Article 8 to Article 16 of Law Number 2 of 2004.
Concerning the Settlement of Industrial Relations Disputes
3. Conciliation
Based on the provisions of
Article 1 point 13 of Law Number 2 of 2004, industrial relations conciliation,
hereinafter referred to as conciliation, is the settlement of disputes over
interests, disputes over termination of employment or disputes between trade
unions/labor unions only within one company through deliberations mediated by
one or more conciliators. Conciliation is regulated in articles 17 to 28
concerning the Settlement of Industrial Relations Disputes
4. Arbitration
Authorized institution to be
an arbiter in disputes of interests, disputes between trade unions. The one who
is in charge of being a referee is an arbiter. These arbitrators may be
selected by the disputing parties from a list of arbitrators determined by the
minister. Pursuant to the provisions of Article 1 point 15 of Law Number 2 of
2004, industrial relations arbitration, hereinafter referred to as arbitration,
is the settlement of a dispute over interests, and disputes between trade
unions/labor unions only within one company, outside the industrial relations
court through a written agreement of the parties concerned. disputing to submit
dispute resolution to an arbitrator whose decision is binding on the parties
and is final. Arbitration is regulated in Part 4 of Law No. 2 of 2004
concerning Settlement of Industrial Relations Disputes in articles 29 to 88.
5. Industrial
Relations Court (PHI)
The industrial relations
court is a special court that is within the general court environment, which is
formed at the District Court and the Supreme Court. The absolute authority or
absolute competence of the Industrial Relations Court is stated in Article 56
of the PPHI Law, namely: The Industrial Relations Court has the duty and
authority to examine and decide:
a. At
the first level regarding rights disputes
b. At
the first and last levels regarding disputes of interest
c. At
the first level regarding disputes over termination of employment
d. At
the first and last level regarding disputes between trade unions/labor unions
within one company (Husni,
2012).
The
Industrial Relations Court has the authority to examine and decide on rights
disputes and layoff disputes at the first level and decide on disputes between
trade unions in a company at the first and last levels (Sitompul,
2021).
B. Legal Actions Against
Entrepreneurs Violating Workers' Rights
The provisions of Labor Law
in Indonesia are contained in Law Number 13 of 2003 concerning Manpower.
Matters regulated in labor law are all matters related to labor before, during
and after work. The purpose of forming this labor law is:
1. Empowering
and utilizing manpower optimally and humanely;
2. Merealize
equal distribution of employment opportunities and supply of manpower in
accordance with the needs of national and regional development;
3. Meprovide
protection to workers in realizing prosperity;
4. Improving
the welfare of workers and their families.
Labor law also regulates the
relationship between workers and employers which occurs because of a work
agreement between employers and workers/laborers. In carrying out company
activities, employers have an obligation to fulfill the rights of every worker.
These workers' rights include the right to receive equal treatment without
discrimination on any basis, the right to develop work competence, the right to
worship according to their religion and beliefs, the right to get anything or
income that is in accordance with human dignity and worth, the right to get
protection, welfare, health and safety at work.
Therefore, employers are
reminded to be aware of the existence of rights and obligations arising from
work agreements between employers and workers/labor which have been regulated
in Law Number 13 of 2003 concerning Manpower regarding sanctions that can be
imposed in the case of employers' non-compliance with rights and obligations.called a form of legal protection
for workers who experience termination of employment has been reflected in Law
no. 13 of 2003 concerning Employment in Article 164 paragraph (1) which
regulates legal protection for workers by providing the right to compensation,
severance pay, and pensions or what is called the workers' rights for the layoff. Basically, there are and
types of sanctions contained in Law Number 13 of 2003 concerning Manpower,
namely in the form of criminal and administrative sanctions as regulated in
Chapter XVI Articles 183 to 190.
a. Criminal
Sanctions
Criminal
sanctions can be imposed on employers who commit violations against workers as
stipulated in Law Number 13 of 2003 concerning Manpower which varies according
to the article that was violated. These criminal sanctions are mentioned in
articles 183 to 189, as follows.
Article 183
(1)
Anyone who violates the provisions referred to in Article
74 shall be subject to sanctions imprisonment for a minimum of
2 (two) years and a maximum of 5 (five) years and/or a fine of a minimum of IDR
200,000,000.00 (two hundred million rupiah) and a maximum of IDR 500,000,000.00
(five hundred million rupiah).
(2)
The crime referred to in
paragraph (1) is a criminal act.
Article 184
(1)
Whoever violates the
provisions referred to in Article 167 paragraph (5), is subject to imprisonment
for a minimum of 1 (one) year and a maximum of 5 (five) years and/or a fine of
at least Rp. 100,000,000.00 (one hundred million
rupiahs) and a maximum of IDR 500,000,000.00 (five hundred million rupiah).
(2)
The crime referred to in
paragraph (1) is a criminal act.
Chapter185
(1)
Whoever violates the
provisions referred to in Article 42 paragraph (1) and paragraph (2), Article
68, Article 69 paragraph (2), Article 80, Article 82, Article 90 paragraph (1),
Article 143, and Article 160 paragraph (4) and paragraph (7), shall be subject
to imprisonment for a minimum of 1 (one) year and a maximum of 4 (four) years
and/or a fine of a minimum of Rp. 100,000,000.00 (one
hundred million rupiah) and a maximum of Rp. 400,000.
000.00 (four hundred million rupiah).
(2)
The crime referred to in
paragraph (1) is a criminal act.
Article 186
(1)
Whoever violates the
provisions referred to in Article 35 paragraph (2) and paragraph (3), Article
93 paragraph (2), Article 137 and Article 138 paragraph (1), is subject to
imprisonment for a minimum of 1 (one) month and a maximum 4 (four) years and/or
a fine of at least IDR 10,000,000.00 (ten million rupiah) and a maximum of IDR
400,000,000.00 (four hundred million rupiah).
(2)
The crime referred to in
paragraph (1) is a criminal offense.
Article 187
(1)
Whoever violates the
provisions referred to in Article 37 paragraph (2), Article 44 paragraph (1),
Article 45 paragraph (1), Article 67 paragraph (1), Article 71 paragraph (2),
Article 76, Article 78 paragraph (2) ), Article 79 paragraph (1), and paragraph
(2), Article 85 paragraph (3), and Article 144, are subject to criminal
sanctions with imprisonment for a minimum of 1 (one) month and a maximum of 12
(twelve) months and/or a fine a minimum of IDR 10,000,000.00 (ten million
rupiah) and a maximum of IDR 100,000,000.00 (one hundred million rupiah).
(2)
The crime referred to in
paragraph (1) is a criminal offense.
Article 188
(1)
Whoever violates the
provisions referred to in Article 14 paragraph (2), Article 38 paragraph (2),
Article 63 paragraph (1), Article 78 paragraph (1), Article 108 paragraph (1),
Article 111 paragraph (3), Article 114, and Article 148, shall be subject to criminal
sanctions of a minimum fine of Rp. 5,000,000.00 (five
million rupiahs) and a maximum of Rp. 50,000,000.00
(fifty million rupiahs).
(2)
The crime referred to in
paragraph (1) is a criminal offense.
Article 189
Criminal sanctions of
imprisonment, confinement and/or fines do not eliminate the obligation of
employers to pay rights and/or compensation to workers or workers/laborers.
From the description above regarding criminal sanctions
against employers who violate work rights against termination of employment as
stated in porigin
164 paragraph (1) Law No. 13 of 2003 concerning Manpower as follows which
regulates legal protection for workers by providing the right to compensation,
severance pay, and pensions or what is called the rights of workers for layoffs,
namely criminal sanctions, namely:Article 189 Law No. 13 of 2003
concerning Manpower namelyPenalties of imprisonment,
confinement and/or fines do not eliminate the employer's obligation to pay
rights and/or compensation to workers or workers/labor (Article 189 of Law
No.13 of 2003 concerning Manpower).
b.
Administrative Action
This administrative action can take the form
of a warning, written warning, limitation of business activities, suspension of
business activities, cancellation of approval, cancellation of registration,
temporary suspension of part or all of the means of production up to revocation
of jury. We can see further in Article 190 of Law Number 13 of 2003 concerning
Manpower which states:
(1) Minister
or appointed official imposes administrative sanction for violation of
provisions as stipulated in Article 5, Article 6. Article 15, Article 25,
Article 38 paragraph (2), Article 45 paragraph (1), Article 47 paragraph (1)
Article 48, Article 87, Article 106, Article 126 paragraph (3), and Article 160
paragraph (1) and paragraph (2) of this Law and its implementing regulations.
(2) Administrative
sanctions as referred to in paragraph (1) are in the form of:
a) reprimand;
b) written warning;
c) restrictions
on business activities;
d) Suspension
of business;
e) cancellation of approval;
f) cancellation
of registration;
g) temporary
suspension of part or all of the means of production;
h) license revocation.
(3) Provisions
regarding administrative sanctions as referred to in paragraph (1) and
paragraph (2) shall be further regulated by the Minister.
Provisions
regarding administrative sanctions as referred to in paragraph (1) and
paragraph (2) are further regulated by the Minister. The explanation regarding
the prohibition in Article 190 that will be subject to administrative sanctions
above is:
1) Discrimination in obtaining
employment (Article 5)
2) Discrimination
at work (Article 6)
3) Not
fulfilling the requirements for organizing job training (Article 15)
4) Apprenticeship
outside the territory of Indonesia is not according to the rules (Article 25)
5) The
collection of labor placement fees is not in accordance with the regulations
(Article 38) Paragraph (2)
6) Employment
of foreign workers is not in accordance with the regulations (Article 45
Paragraph (1)
7)
Peemployer
does not pay compensation to foreign workers (Article 47 Paragraph (1)
8) Employers
do not repatriate foreign workers after the working period ends (Article 48)
9) The
company does not implement an occupational safety and health management system
that is integrated with the company's management system (Article 87)
10) The
company does not form a bipartite cooperation institution according to the
regulations (Article 106)
11) Entrepreneurs
do not print and distribute the collective labor agreement text to each worker
at the expense of the company (Article 126 Paragraph (3)
12) Employers
do not aid dependents of workers who are arrested not on the basis of employer
complaints (Article 160 Paragraphs (1) and (2).
CONCLUSION
Workers can file legal remedies if the employer does not provide
their rights as a result of layoffs mentioned in Article 171 of Law no. 13 of
2003 concerning Manpower namelyworkers/laborers
who experience termination of employment without the establishment of an
authorized industrial relations dispute resolution institution as referred to
in Article 158 paragraph (1), Article 160 paragraph (3), and Article 162, and
the worker/laborer concerned cannot accept the termination of employment
mentioned above, the worker/laborer can file a lawsuit with the industrial relations
dispute settlement institution (administrative/civil) within a period of 1
(one) year from the date the employment relationship was terminated.
Legal
sanctions against employers who violate workers' rights as a result of layoffs
based on Law Number 13 of 2003 concerning Manpower, namely criminal and
administrative sanctions. Article 189 Criminal sanctions of imprisonment,
confinement and/or fines do not eliminate the obligation of employers to pay
rights and/or compensation to workers or workers/laborers and Article 190
paragraph (2) namely administrative sanctions namely reprimands, written
warnings, restrictions on activities business, freezing of business activities,
cancellation of approval, cancellation of registration, temporary suspension of
part or all of the means of production, up to revocation of permits.
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