I Made Budi Arsika
Sagung Putri M.E. Purwani Made Maharta Yasa
International Seminar
“Economic Approach to Law in Tourism Industry”
Bali, 28 August 2015
Economic Rights of Foreign Workers
in Tourism Industry in Bali:
OUTLINE
Background
Facts and Figures
Legal Issues
Methodology
Scope of Analysis
Relevant Concept
Analysis on relevant instruments
Case Laws
Some Notes
Conclusion
BACKGROUND
Tourism industry in Bali
The coming of foreign workers to Bali
Medias mostly make reports on the negative impacts of the foreign workers, especially for the local workers
Most issues are dealing with the readiness of local workers to compete with foreign workers
Some violations of law and administrative procedure by illegal foreign workers
The recognition of economic rights of foreign workers?
Facts and Figures
Minister of Manpower and Transmigration: It is estimated 68.000- 70.000 foreign workers are working in Indonesia until August 2015.
Director General Immigration: Some 6.236 foreigners have been deported between January-June 2015, including illegal foreign workers. Most of them are nationals of Bangladesh, Myanmar, PRC, Thailand,
Vietnam, Malaysia, and Cambodia.
Head of Manpower and Transmigration Office of the Bali Province: Government has issued 1.019 License to Employ Foreign
Worker (Ijin Mempekerjakan Tenaga Kerja Asing/IMTA) between January-June 2015. Most of them are Malaysian, Singaporean, American, and Japanese who predominantly work in tourism sector (hotel, travel, and other
accommodation service) and hold “top” manager position.
Legal Issues
What are the obligations of the governments to protect the economic rights of foreign workers in tourism industry?
METHODS
Legal Research methods:
- Conceptual approach : Explore and define the legal concept - Statutory approach: Inquiries on relevant international,
regional, national, and local instruments
- Case approach
Scope of Analysis
Exploring and analyzing the existing laws and regulations (lex lata)
Relevant Concepts
Human Rights: Second generation rights
Economic Rights: the right to work, the right to the free choice of employment and to just and favourable conditions of work; the right to form and join trade unions; the right to own property. etc
Rights of Nationals and Non-nationals
Workers and Foreign Workers
Relevant Instruments
International
Regional
International Instruments
ILO Conventions No 111 concerning Discrimination in Respect of Employment and Occupation (ratified by Act of the Republic of Indonesia No. 21 Year 1999)
International Convention on the Protection of the Rights of All Migrant Workers and Members of their Families (ratified by Act of the Republic of Indonesia No. 6 Year 2012)
International Covenant on Economic, Social, and Cultural Rights (ratified by Act of the Republic of Indonesia No. 12 Year 2005)
ILO Conventions No 111 concerning Discrimination in Respect of Employment and Occupation
• Article 1 (1) (a)
For the purpose of this Convention the term discrimination includes-- any distinction, exclusion or preference made on the basis of race, colour, sex, religion, political opinion, national extraction or social origin, which has the effect of nullifying or impairing equality of opportunity or treatment in employment or occupation;
• Article 2
Each Member for which this Convention is in force undertakes to declare and pursue a national policy designed to promote, by
methods appropriate to national conditions and practice, equality of opportunity and treatment in respect of employment and
International Convention on the Protection of the Rights
of All Migrant Workers and Members of their Families
Article 25
1. Migrant workers shall enjoy treatment not less favourable than that which applies to nationals of the State of employment in respect of remuneration and: (a) Other conditions of work, that is to say, overtime, hours of work, weekly rest,
holidays with pay, safety, health, termination of the employment relationship and any other conditions of work which, according to national law and practice, are covered by these terms;
(b) Other terms of employment, that is to say, minimum age of employment, restriction on home work and any other matters which, according to national law and practice, are considered a term of employment.
2. It shall not be lawful to derogate in private contracts of employment from the principle of equality of treatment referred to in paragraph 1 of the present article.
International Covenant on Economic,
Social, and Cultural Rights
Article 2
1. Each State Party to the present Covenant undertakes to take steps,
individually and through international assistance and co-operation, especially
economic and technical, to the maximum of its available resources, with a view to achieving progressively the full realization of the rights recognized in the present Covenant by all appropriate means, including particularly the adoption of legislative measures.
2. The States Parties to the present Covenant undertake to guarantee that the rights enunciated in the present Covenant will be exercised without
discrimination of any kind as to race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status. 3. Developing countries, with due regard to human rights and their
national economy, may determine to what extent they would
Global Code of Ethics for Tourism
Article 9 Rights of the workers and entrepreneurs in the tourism industry
(1) The fundamental rights of salaried and self-employed workers in the tourism industry and related activities, should be guaranteed under the supervision of the national and local administrations, both of their States of origin and of the host countries with particular care, given the specific constraints linked in particular to the seasonality of their activity, the global dimension of their industry and the flexibility often required of them by the nature of their work;
(2) Salaried and self-employed workers in the tourism industry and related activities
have the right and the duty to acquire appropriate initial and continuous training; they should be given adequate social protection; job insecurity should be limited so far as possible; and a specific status, with particular regard to their social welfare, should be offered to seasonal workers in the sector;
Regional
ASEAN Human Rights Declaration
Article 27.
(1) Every person has the right to work, to the free choice of employment, to enjoy just, decent and favourable conditions of work and to have access to assistance schemes for the unemployed.
(2) Every person has the right to form trade unions and join the trade union of his or her choice for the protection of his or her interests, in accordance with national laws and regulations.
ASEAN Declaration on the Protection and Promotion of the Rights of Migrant Workers
Obligations of Receiving States:
- Intensify efforts to protect the fundamental human rights, promote the welfare and uphold human dignity of migrant workers (Article 5)
National
Act of the Republic of Indonesia No. 103Year 2003
concerning Manpower: Chapter VIII concerning Employment of Foreign Worker
Act of the Republic of Indonesia No. 10 Year 2009 concerning Tourism
Article 56
(1) Tourism enterprises may employ foreign expert worker in accordance with the provisions in the statutory regulation (2) The foreign expert worker referred to paragraph (1) shall
Local Regulation
Provincial Regulation of Bali Province No. 2 Year 2012
concerning Bali’s Cultural Tourism: determines that every
person has right to work in tourism industry
The Nature of State Obligation
in Economic Rights
The Maastricht Guidelines On Violations Of Economic,
Social And Cultural Rights mentions the following obligations on ecosoc rights
Obligation to respect
Obligation to protect
Obligation to fulfil
Obligations of conduct
Main Issue: Obligation to Protect:
1. Government must protect the enjoyment of economic
rights of the foreign workers by continuously monitoring the proper job and responsible payment scheme --including the compliance of minimum wage-- are provided by
business entities that employed foreign workers
2. Government must protect foreign workers from any
Case Laws
Decision of the Indonesian Supreme Court No. 777
K/Pdt.Sus/2011 , Case between PT. Royal Bali Leisure (Peninsula Beach Resort) vs. Gavin Michael David Wilson (UK); Issues covered: Dismissal, Job Contract, KITAS,
Illegal working relationship; The Supreme Court annulled the decision of Industrial Relation Court of Denpasar.
Decision of the Indonesian Supreme Court Nomor 286
Some Notes
Most foreign workers in Bali occupied high-rank job (“top” manager position) and have status as foreign expert worker.
As the employers need their expertise, economic rights of this kind of foreign workers seems not violated.
Potential Case: Dismissal and Interpretation of Contract.
CONCLUSION
1. Government must protect the exercise of economic rights
of the foreign workers and must also protect foreign workers from any economic discrimination based on national extraction.
2. The government should use a human rights-based
RECOMENDATION
National government should ensure that the rights of fair trial of the foreign workers in defending their economic rights on litigation proceedings, are protected.
