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ISSN 2668-7798
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Vol. 20, 2021
Legal protection of transferred workers after the enabling of the creation law of work
Sarbini1, Slamet Suhartono2, Sri Setyadji3, Hufron4
1 2 3 4Faculty of Law, Universitas 17 Agustus 1945 Surabaya, Indonesia
Abstract. This research is a normative legal research, which focuses on the study of positive law. Efforts to fulfill the rights of workers/labor have been carried out since the promulgation of Law Number 13 of 2003 concerning Manpower. It’s hoped that this law can also fulfill the rights of every worker to be able to work and to receive appropriate benefits for the survival of themselves and their families. However, until now the condition of workers/laborers is still faced with several problems, including low wages, low levels of welfare, and weak legal protection for workers. Legal protection for outsourced workers/laborers after the enactment of the Job Creation Law is increasingly erratic, even no better than when the Manpower Law was enacted.
This is because the provisions governing the types of work that can be outsourced are removed.
In addition, the entry into force of the Job Creation Law allows for the enactment of a life stew contract for outsourced workers/laborers. This thing certainly benefits the entrepreneur, but disadvantages workers/laborers. During the contract period, the employer may at any time unilaterally decide the outsourcing relationship for certain reasons. Thus the enactment of the Employee Creation Law weakens the legal protection of outsourced workers/laborers.
Keywords. legal; workers; law
Introduction
Efforts to fulfill the rights of workers/labor have been carried out since the promulgation of Law Number 13 of 2003 concerning Manpower. It’s hoped that this law can also fulfill the rights of every worker to be able to work and to receive appropriate benefits for the survival of themselves and their families. However, until now the condition of workers/laborers is still faced with several problems, including low wages, low levels of welfare, and weak legal protection for workers.(Purnomo, 2019)
Worker problems became increasingly prominent after the outsourcing system was used. Economically, the use of outsourcing systems can save costs, especially the cost of human resources (workers), so that it can increase it’s main business focus, the company will also be able to further increase it’s core competence or main competition. In the long run, the use of the outsourcing system will benefit the company, because the company isn’t burdened with other costs, such as for the welfare of workers, such as the payment of old age benefits, severance pay, service fees, and so on.(A’yun Amalia & Prasetyawati, 2019)
The enactment of Law Number 11 of 2020 concerning Job Creation, is expected to be able to attract foreign and domestic investors to invest in Indonesia. This effort is made by providing investment facilities, including the ease of establishing a business, by simplifying Technium Social Sciences Journal
Vol. 20, 302-307, June, 2021 ISSN: 2668-7798 www.techniumscience.com
licensing requirements. It’s hoped that this law can create new jobs and improve the welfare of workers/laborers.(-, 2021) However, the Job Creation Law still uses the outsourcing system as in Law Number 13 of 2003 concerning Manpower. Based on the background, the formulation of the problem is legal protection for outsourced workers/laborers after the enactment of Law Number 11 of 2020 concerning Job Creation.
Research Method
This research is a normative legal research, which focuses on the study of positive law.
(Michael & Boerhan, 2020)
Discussion
Legal Relations in Outsourcing Systems
To meet the availability of employment opportunities and provide legal protection for workers, the government enacted Law Number 13 of 2003 concerning Manpower (Law on Employment). The existence of a Manpower Law is very important and fundamental in regulating work relations, because the content isn’t only technical, but also full of social, economic and political content which also relates to human rights issues.(Revita Pirena Putri, Wiwik Afifah, n.d.) The manpower law will guide the working relationship between companies and workers/laborers. Labor law will safeguard the rights and obligations between workers/laborers and companies in an effort to achieve legal certainty and justice.(Rini, 2018)
The Manpower Act doesn’t use the term outsourcing, but instead uses the term
“contracting agreements or service providers for workers or laborers”. Outsourcing is regulated in Article 64, Article 65 and Article 66 of the Manpower Act. Furthermore, it’s described in the Decree of the Minister of Manpower and Transmigration of the Republic of Indonesia No. Kep.
101/Men/VI/2004 of 2004 concerning Licensing Procedures for Worker/Laborer Service Provider Companies. More specifically, the provisions governing outsourced workers/laborers can be found in Article 64 to Article 66 of the Manpower Act.(Prabhaputra, 2019)
Article 64 of the Manpower Act, stipulates "a company may hand over part of the work implementation to another company through a written contract of work or the provision of worker/labor services made in writing". Furthermore, Article 65 stipulates "a work relationship can be differentiated into a permanent work relationship, based on an Indefinite Work Agreement (here in after referred to as Unspecified Time Work Agreement), and a precarious employment relationship based on a Fixed Time Work Agreement".
The legal relationship in the outsourcing system doesn’t occur between the worker/laborer and the employing company, but between the worker /laborer and the outsourcing company, and between the outsourcing company and the company that employs the worker/laborer. In the outsourcing system, there is no legal relationship between workers/laborers who are employed and the company that provides them. In the outsourcing system, the contract isn’t awarded by the employing company, but by another company as a labor recruiting company.(Izzati, 2018) A manpower service provider company is a company that specifically trains/prepares, provides, employs workers/laborers for the benefit of other companies. This company has a direct working relationship with the laborers/workers employed.(Karo Karo & Yana, 2020)
In the outsourcing system, there is only the obligation of the worker/laborer to carry out the work that has been agreed between the company where they work and the outsourcing company. Workers/laborers cannot exercise their rights to the employing company, but only to the outsourcing system company. The employing company relinquishes it’s responsibility towards outsourced workers/laborers, because the employing company doesn’t have direct Technium Social Sciences Journal
Vol. 20, 302-307, June, 2021 ISSN: 2668-7798 www.techniumscience.com
contact with the workers. A company with an outsourcing system is only related to an outsourcing company that provides workers to be employed at a company that uses labor.
Outsourced Workers Legal Protection
The use of the outsourcing system indicates that the fate of workers/laborers is very vulnerable, because it stands in two separate areas of legal relations. Legally, workers/laborers are under a company that provides labor services, but in fact they submit to and work for the employing company as a worker/laborer service user. In a position like this, the employing worker/laborer will conduct an assessment of the worker/laborer performance, and if the results aren’t satisfactory, can return the worker/laborer to the outsourcing company. Workers/laborers cannot defend themselves on their performance appraisals.(Taufiq, 2021)
In the outsourcing system, the worker / laborer is the loser, because in the event of a termination of employment, the worker/laborer doesn’t get normative rights in accordance with the provisions of laws and regulations.(Mahy, 2020) The work period of the worker/laborer has no meaning, because every time the contract period ends, it will be returned to the outsourcing company, and if it’s reused, a new work agreement will be made. The work period starts from the beginning like before work, so there is no period of service, no loyalty, no reward money for the period of service. Legal protection for workers is also getting weaker, because the existing regulations are inadequate to regulate the protection of contract workers that have been running.(Albert, 2017)
Legal protection for workers/labor is implied in the provisions of Article 66 of the Manpower Act, which stipulates that “jobs that can be used as the object of an outsourcing agreement are jobs that aren’t directly related to the main activities or production processes of a company except for activities that aren’t directly related to the production process. Article 66 paragraph (1) stipulates that "Work related to main business activities or activities directly related to the production process, employers are only allowed to employ workers/laborers with Fixed Time Work Agreement and/or Unspecified Time Work Agreement". So, the Manpower Act only states implicitly the words or sentences in the provisions of some of these articles.(Ballard, 2020)
The enactment of Law Number 11 of 2020 concerning Job Creation, the outsourcing system is regulated in Chapter IV. According to Article 66 of the Employment Creation Act, work agreements for outsourced workers are made with the outsourcing company that employs them, which are based on a Fixed-Time Work Agreement and/or an Unspecified Time Work Agreement. Issues related to legal protection, wages, working conditions, and disputes that arise are the responsibility of the outsourcing company. Particularly for non-permanent contracts, the work agreement must require the transfer of protection of workers/labor rights in the event of a change in outsourcing companies and as long as the object of work remains. Further provisions regarding the protection of workers/labor, shall be regulated in a Government Regulation. The enactment of the Job Creation Law, has removed the provisions regarding conditions that previously could only be made for certain jobs, which according to the type and nature or activity of the work would be completed within a certain period of at most 3 years.(Kartika, 2021) These changes have the potential to create legal uncertainty for workers. Regarding this matter regulated in Article 56 of the Job Creation Act, it determines:
1) Work agreements are made for a certain time or for an unspecified time.
2) The work agreement for a specified time as referred to in paragraph (1) is based on:
a. Time period;
b. Completion of a certain job.
Technium Social Sciences Journal Vol. 20, 302-307, June, 2021 ISSN: 2668-7798 www.techniumscience.com
3) The period of time or completion of a certain job as referred to in paragraph (2) is determined based on the agreement of the parties.
4) Further provisions regarding a certain period of time work agreement based on the period of time or the completion of a certain job are regulated by a Government Regulation.
Fixed-Time Work Agreement based on a one time work package or work that is temporary in nature, as well as work whose completion (time) is estimated to be not too long.
In Fixed-Time Work Agreement which is based on the completion of certain jobs, it’s made only for a maximum of 3 years, and in the agreement must include a limit for completion of work. If certain jobs can be completed earlier than promised, then the Fixed-Time Work Agreement ends or breaks up by law. Non-permanent work contracts for work that are seasonal in nature, are jobs that in practice depend on a certain season or weather, which can only be done for one type of work in a certain season. Likewise, work that must be done to fulfill certain orders or targets is categorized as seasonal work. However, it can only be done for workers/laborers who do additional work.
The Job Creation Act regulates a fixed-term work agreement, especially for the conditions for the agreement, but still requires further regulations so that companies don’t arbitrarily make non-permanent contracts with workers/laborers. Subsequently, the provisions of Article 61 are amended so that it reads as follows:
1) The work agreement ends when: a) the workers dies; b) the termination of the work agreement period; c) completion of a certain job; d) there is a court decision and/ or an industrial relations dispute settlement institution that has permanent legal force; or e) there are certain circumstances or events stated in the work agreement, company regulations, or collective working agreement that can cause the termination of the working relationship.
2) The work agreement doesn’t end because of the death of the enterpreneur or the transfer of rights to the company due to a sale, inheritance or grant.
One thing that needs to be noted is that the Job Creation Law has removed the deadline for non-permanent contracts, which was previously regulated in Article 59 Paragraph (4) of the Manpower Law, with the formula: may be extended 1 (one) time for a maximum period of 1(one) year. “Non-permanent contracts Fixed-Time Work Agreement which are based (packages) are only made for a maximum of 3 years. Fixed-Time Work Agreement which is based on a certain (package) of work cannot be extended or renewed (Article 59 paragraph (1) letter b of the Manpower Act). Conversely, Fixed-Time Work Agreement which is based on a certain period of time can be held for (the first time) a maximum of 2 years then can be extended once for a maximum period of 1 year (Article 59 paragraph (4) of the Manpower Law). In connection with the renewal of the Fixed-Time Work Agreement, if the Fixed-Time Work Agreement is the renewed, the renewal can only be done after going through a “pause period”
with a grace period (at least) of 30 days from the end of the old (first) Fixed-Time Work Agreement, and this renewal may only be done once for that a maximum period of 2 years.
Fixed-Time Work Agreement in the Job Creation Law can be carried out indefinitely, so that it can result in contract workers, including outsourced workers, being threatened with not having the clarity to obtain the right to become permanent employees. Outsourced workers are threatened to become contract workers for life and don’t get various fulfillment of workers’
rights as in general permanent employees. The Job Creation Act also removes provisions on the types of work that can be outsourced. Article 81 of the Job Creation Law states that the old provisions in Article 66 of the Manpower Act have been amended.
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Article 81 of the Job Creation Law also removes the provisions of Article 17 Permenakertrans Number 19 of 2012 concerning Conditions for Submission of Part of Work Implementation to Other Companies, and only provides information that these provisions are removed and further explained regarding the protection of workers’ rights and workers which will be regulated in Government Regulation. Therefore, as long as the Government Regulation doesn’t clearly state the types of work that can be outsourced, outsourcing practices can be used for all types of work or at least before the issuance of a Government Regulation regarding the types of work that can be outsourced.
If this happens, of course it becomes a separate concern, considering that throughout the history of the use of outsourcing systems in Indonesia, outsourced workers/laborers receive lower welfare than contract employees, let alone permanent employees.(Baicker et al., 1998) In addition to the income that the outsourcing company that employs a lot of them deducts, workers/laborers also don’t receive social security and various other benefits like contract employees and permanent employees.
Conclusion
Legal protection for outsourced workers/laborers after the enactment of the Job Creation Law is increasingly erratic, even no better than when the Manpower Law was enacted. This is because the provisions governing the types of work that can be outsourced are removed. In addition, the entry into force of the Job Creation Law allows for the enactment of a life stew contract for outsourced workers/laborers. This thing certainly benefits the entrepreneur, but disadvantages workers/laborers. During the contract period, the employer may at any time unilaterally decide the outsourcing relationship for certain reasons. Thus the enactment of the Employee Creation Law weakens the legal protection of outsourced workers/laborers. The only hope is that the issuance of a government regulation as an implementation regulation of the Job Creation Act can provide better legal protection for outsourced workers/laborers in Indonesia.
References
[1] -, S.-. (2021). OMNIBUS LAW - JOB CREATION LAW IN HUMAN RIGHTS PERSPECTIVE. Jurnal Dinamika HAM (Journal of Human Rights), 12(2).
https://doi.org/10.24123/jdh.v12i2.3964
[2] A’yun Amalia, I. Q., & Prasetyawati, E. (2019). KARAKTERISTIK ASAS PROPORSIONALITAS DALAM PEMBENTUKAN KLAUSUL PERJANJIAN
WARALABA. Jurnal Hukum Bisnis Bonum Commune.
https://doi.org/10.30996/jhbbc.v2i2.2513
[3] Albert, C. (2017). The Labor Market Impact of Undocumented Immigrants: Job Creation vs. Job Competition. Working Paper, July.
[4] Baicker, K., Goldin, C., & Katz, L. F. (1998). A Distinctive System: Origins and Impact of U.S. Unemployment Compensation. In The Defining Moment: The Great Depression and the American Economy in the Twentieth Century.
[5] Ballard, R. (2020). Ethnic Diversity and the Delivery of Justice: The Challenge of Plurality. In Migration, Diasporas and Legal Systems in Europe.
https://doi.org/10.4324/9781003076766-3
[6] Izzati, N. R. (2018). IMPROVING OUTSOURCING SYSTEM IN INDONESIA:
FIXING THE GAP OF LABOUR REGULATION. Mimbar Hukum - Fakultas Hukum Universitas Gadjah Mada, 29(3). https://doi.org/10.22146/jmh.28372
[7] Karo Karo, R. P. P., & Yana, A. F. (2020). Konsepsi Omnibus Law terhadap Perlindungan Tenaga Kerja Wanita di Indonesia. Warta Dharmawangsa, 14(4).
Technium Social Sciences Journal Vol. 20, 302-307, June, 2021 ISSN: 2668-7798 www.techniumscience.com
https://doi.org/10.46576/wdw.v14i4.901
[8] Kartika, R. (2021). The Omnibus Law Employment Copyright’s Affected Legal Certainty on The Status of Outsourcing Workers. https://doi.org/10.4108/eai.1-7- 2020.2303658
[9] Mahy, P. (2020). COVID-19 and Labour Law: Indonesia. Italian Labour Law E- Journal, 13(1).
[10] Michael, T., & Boerhan, S. (2020). NEGARA DAN EKSISTENSINYA DALAM PRIVASI SUBJEK HUKUM. Jurnal Hukum Magnum Opus, 3(2).
https://doi.org/10.30996/jhmo.v3i2.3414
[11] Prabhaputra. (2019). Sistem Outsourcing Dalam Hubungan Industrial Di Indonesia ( Outsourcing System In Industrial Relation In Indonesia ). Jurnal Analogi Hukum, 1(1).
[12] Purnomo, S. H. (2019). PEKERJA TETAP MENGHADAPI PEMUTUSAN HUBUNGAN KERJA. Jurnal Hukum Bisnis Bonum Commune.
https://doi.org/10.30996/jhbbc.v2i2.2493
[13] Revita Pirena Putri, Wiwik Afifah, T. M. (n.d.). POVERTY AS A BARRIER TO THE ACHIEVEMENT OF THE RIGHT TO HEALTH. INTERNATIONAL JOURNAL OF SOCIAL, POLICY AND LAW, 2(1), 103–108.
[14] Rini, N. S. (2018). Penyalahgunaan Kewenangan Administrasi Dalam Undang Undang Tindak Pidana Korupsi. Jurnal Penelitian Hukum De Jure.
https://doi.org/10.30641/dejure.2018.v18.257-274
[15] Taufiq, M. (2021). The CONSIDERING THE BASIC BENEFITS OF OMNIBUS LAW FOR PEOPLE. Jurnal Dinamika HAM (Journal of Human Rights), 12(2).
https://doi.org/10.24123/jdh.v12i2.2953
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