Volume 8, Number 2, 2023
P-ISSN: 2502-8006 E-ISSN: 2549-8274
DOI: https://doi.org/10.22373/petita.v8i2.227 Indexed by Scopus:
https://suggestor.step.scopus.com/progressTracker/?trackingID=6104E7D47B535213
LEGAL RELATIONSHIP STATUS OF LOADING AND UNLOADING AFTER THE JOB CREATION LAW
ASRI WIJAYANTI
Universitas Maarif Hasyim Latif, Sidoarjo, Jawa Timur, Indonesia Email: [email protected]
Abstract: The status of stevedoring labor legal relations is still debated among labor law experts. As a permanent worker, outsourcer, daysman, or no employment relationship.
Focus the study to analyze the status of the legal relationship between stevedoring workers and the legal consequences, along with legal remedies that can be taken by stevedoring workers, if they have not received maximum rights. The case and statutory approaches are used in this legal research. The results of the research study after analysis of the substance and procedure are the status of legal relations of stevedoring labor, more precisely as daily workers, and as members of cooperatives. The legal consequence of the employment relationship status of stevedoring workers with cooperatives is the right to share the remaining operating results, at the end of the year. The legal consequence of the loading and unloading labor service work is wages based on daily time units. There is no right to severance pay, service award money, or reimbursement money because it is not stipulated in the Cooperative Annual Member Meeting. Legal actions that can be taken by stevedoring workers if they do not get their rights can file a default lawsuit in the local District Court. The recommendation given is that cooperatives can establish additional rights for bonfire loading workers, such as rights that should obtain permanent employment, through the annual meeting of cooperative members.
Keywords: stevedoring labor, day labor, cooperative, labor relations.
Abstrak: Status hubungan hukum tenaga kerja bongkar muat, sampai sekarang masih menjadi perdebatan di kalangan ahli hukum ketenagakerjaan. Sebagai pekerja tetap, pekerja alih daya, pekerja harian, atau tidak ada hubungan kerja. Penelitian ini bertujuan untuk menganalisis status hubungan hukum tenaga kerja bongkar muat dan akibat hukum, beserta upaya hukum yang dapat dilakukan oleh tenaga kerja bongkar muat, apabila belum mendapat hak secara maksimal. Penelitian hukum ini menggunakan pendekatan perundang undangan dan kasus. Hasil penelitian setelah dilakukan analisis substansi dan prosedur adalah status hubungan hukum tenaga kerja bongkar muat, lebih tepat sebagai pekerja harian, dan sebagai anggota koperasi. Akibat hukum atas status hubungan kerja tenaga kerja bongkar muat dengan koperasi adalah adanya hak atas pembagian sisa hasil usaha, di akhir tahun. Akibat hukum atas telah dijalankannya pekerjaan jasa tenaga kerja bongkar muat adalah upah berdasar satuan waktu harian. Tidak ada hak atas uang pesangon, uang penghargaan masa kerja dan uang penggantian hak, karena tidak ditetapkan dalam Rapat Anggota Tahunan Koperasi. Upaya hukum yang dapat dilakukan oleh tenaga kerja bongkar muat apabila tidak mendapatkan haknya dapat mengajukan
gugatan wanprestasi di Pengadilan Negeri setempat. Rekomendasi yang diberikan adalah koperasi dapat menetapkan tambahan hak bagi tenaga kerja bongkar muat, seperti hak yang seharusnya diperoleh pekerjaan tetap, melalui rapat tahunan anggota koperasi.
Kata Kunci: tenaga kerja bongkar muat, pekerja harian, koperasi, hubungan kerja.
Introduction
Loading and unloading labor is a person whose job is to transport goods from ships to ports and vice versa. The regulation and protection of stevedoring workers involves three ministerial authorities, namely the Ministry of Transportation, the Ministry of Cooperatives, Small and Medium Enterprises, and the Ministry of Manpower. There is a dualism of arrangements that can result in a lack of legal protection for stevedoring workers, as workers or as members of cooperatives, to the maximum.
There has been a lot of research done, related to loading, and unloading labor from various aspects. Research by Arif Triewibowo, looks at loading and unloading labor, from the aspect of wages. Supporting Arif Triewibowo’s opinion that enforcement of stevedoring labor wages by labor regulations must be carried out immediately.1
Disagree with the results of Zahry Vandawati’s research, which states that there are general and technical constraints on the implementation of sea transport agreements, which can be minimized if the parties carry out functions by the clauses of the agreement because the root of the 2 problem of stevedoring labor is the status of its legal relationship. Agree with the results of research conducted by Lineke Stine Kuemba,3 Tappang,4 Maudy,5 that health protection for stevedoring workers has not been maximized. Occupational diseases, in the form of back pain, have the potential to be suffered by loading and unloading workers, after working for a long time. Loading and unloading workers will generally feel the presence of occupational diseases after going through or passing some time and not doing work anymore. In agreement with the results of research conducted by Elfrida Ratnawati Gultom, stevedoring workers need knowledge about the right to occupational safety and health to prevent the emergence of occupational diseases through legal counseling.6 Another research has been conducted by Yana Sukma, who examines the process of resolving industrial relations disputes between workers (Teti Sunarti) and the management of the Association of Indonesian stevedoring companies, based on the Supreme Court decision Number 972/Pdt.Sus-PHI/2018. Yana Sukma, only looks at the aspect of the length of the industrial relations dispute resolution process, not specifically researching the status of her employment relationship.7
1 Arief Triwibowo, ‘Sistim Pengupahan Buruh Bongkar Muat Pada Pergudangan Semen Di Kota Bandar Lampung’ (Universitas Lampung 2016).
2 Zahry Vandawati Chumaida, ‘The Implementation Of Unloading Agreements In The Port From Transportation Law Perspectives’ (2019) 34 Yuridika 173 <https://e-journal.unair.ac.id/YDK/
article/view/11802>; Ozy Diva Ersya, ‘Private Actor Rights Derived From The WTO TFA’ (2019) 4 Petita : Jurnal Kajian Ilmu Hukum dan Syariah.
3 Lineke Stine Kuemba, ‘Buruh Bagasi Kapal Di Pelabuhan Kota Bitung’ (2012) 5 Holistik.
4 Tappang and others, ‘Faktor–Faktor Yang Berhubungan Dengan Keluhan Nyeri Punggung Bawah Pada Tenaga Kerja Bongkar Muat Di Pelabuhan Dusun Pelita Jaya Tahun 2020’ (2021) 6 GLOBAL HEALTH SCIENCE (GHS) 19 <http://jurnal.csdforum.com/index.php/GHS/article/view/ghs6104>.
5 Civic Karani Maudy, Luh Putu Ruliati and Soni Doke, ‘Keluhan Musculoskeletal Disorders Dan Kelelahan Kerja Pada Tenaga Kerja Bongkar Muat Di Pelabuhan Tenau’ (2021) 3 Media Kesehatan Masyarakat 312 <http://ejurnal.undana.ac.id/index.php/MKM/article/view/3392>.
6 Elfrida Ratnawati Gultom, ‘Penyuluhan Hukum Tentang Keselamatan Kerja Tenaga Kerja Bongkar Muat (TKBM) Di Pelabuhan Tanjung Priok-Jakarta’ (2022) 1 DAS SEIN: Jurnal Pengabdian Hukum dan Humaniora 79 <https://ejurnal.ung.ac.id/index.php/dassein/article/view/11216>.
7 Yana Sukma and Aep Saepuding, ‘Gugatan Hubungan Industrial Pemutusan Hubungan Kerja Oleh Pekerja (Studi Kasus Perkara Nomor 972K/Pdt.Sus- PHI/2018)’ (2022) 1 Journal Evidence Of Law.
The results of research conducted by Elfrida Ratnawati Gultom, Lineke Stine Kuemba, Tappang, Maudy, and Arif Triewibowo, only looked at loading and unloading workers from the aspect of occupational safety and health. Haven’t looked at it from the aspect of employment relationship status. Yana Sukma’s research has looked at stevedoring labor from the aspect of labor relations, but only specifically related to the time needed in the process of resolving termination disputes, and has not looked at the status of the employment relationship and its legal consequences. Disputes over employment status are common in Indonesia.8 The solution method is more often based on local wisdom,9 rather than using formal solutions.10 The role of the state is needed to protect workers,1112 especially stevedoring workers. The focus of this study aims to analyze the status of legal relations or employment relationship status of the workforce instead of strengthening after the Job Creation Law.
Methods
This study uses a normative approach, namely research that examines the status of labor relations from stevedoring workers, and the approach of legislation and cases. In addition, the study also uses qualitative research, namely problem solving by collecting, processing, analyzing data, and concluding systematically and objectively.13 The primary data were obtained from interviews with stevedoring labor cooperative administrators and Supreme Court decision Number 386K/Pdt.Sus-PHI/2017. The secondary data in this study were obtained from journal articles, books, and other materials.14 Data analysis using a descriptive approach is a method that aims to focus on discussing and dividing problems and making systematic, factual, and accurate descriptions of facts related to this research.
Results
The discussion of stevedoring labor, in this study is based on substance and procedure.
The core question that arises over the substance of the subject of law is who is stevedoring labor and what is the status of its legal relationship? From the core question, developed the question of the substance of the object of law is what stevedoring labor work is and how it works. The question that arises over the procedure is what legal remedies can be taken by stevedoring workers if they do not get their rights?
Cabotage Principle
The study of stevedoring labor, which is based on substance analysis and procedures,
8 Asri Wijayanti and Slamet Suhartono, Sengketa Hubungan Industrial, Kini, Dan Akan Datang (Revka Prima Media 2020).
9 Asri Wijayanti and others, ‘The Mbojo Local Wisdom As An Alternative For The Settlement Of Industrial Relations Disputes’ (2022) 7 PETITA: Jurnal Kajian Ilmu Hukum dan Syari’ah 91 <https://
petita.ar-raniry.ac.id/index.php/petita/article/view/151>.
10 Asri Wijayanti, Lelisari and Indah Kusuma Dewi, Penyelesaian Sengketa Hubungan Industrial Berbasis Kearifan Lokal Di Indonesia (Numerasia 2023).
11 Asri Wijayanti, “Framework Peran Negara Dalam Menciptakan Hubungan Industrial Yang Berkeadilan”
Menggagas Hukum Perburuhan Berkeadilan (Revka Prima Media 2019).
12 Agusmidah Agusmidah and others, ‘The Financial Protection of Indonesian Migrant Workers and Its Economic Consequences’ (2022) 196 Economic Annals-ХХI 22 <http://ea21journal.world/index.
php/ea-v196-02/>.
13 Rifa’i Abubakar, Pengantar Metodologi Penelitian (Sunan Kalijaga Press 2021). See also Muhammad Siddiq Armia and others, ‘Criticizing the Verdict of 18/JN/2016/MS.MBO of Mahkamah Syar’iyah Meulaboh Aceh on Sexual Abuse against Children from the Perspective of Restorative Justice’ (2022) 17 AL-IHKAM: Jurnal Hukum & Pranata Sosial 113 <http://ejournal.iainmadura.ac.id/index.php/
alihkam/article/view/4987>; Muhammad Siddiq Armia, ‘Public Caning: Should It Be Maintained or Eliminated? (A Reflection of Implementation Sharia Law in Indonesia)’ [2019] Qudus International Journal of Islamic Studies.
14 Sugiyono, Metode Penelitian Kuantitatif Dan Kualitatif (Alfabeta 2014).
cannot be separated from the principle of cabotage. What is the principle of cabotage? The principle of cabotage is a principle that applies to water transportation by empowering national sea transportation. National sea freight is sea freight that can be in the form of ships with red and white flags. Indonesian-flagged or red and white vessels are used for transportation between, in moving goods or people from foreign-flagged ships to ports or from ports to foreign-flagged ships. What is the basic purpose of cabotage? The basic purpose of cabotage is to empower national water transportation and strengthen the national shipping industry.15 What efforts can be made to strengthen the national shipping industry? Efforts can be made through the establishment of an integrated shipping industry area and the empowerment of the aquatic transportation industry.16
What is the impact of the implementation of the cabotage principle on the loading and unloading workforce? The impact of the application of the cabotage principle is the continued increase in the number of red and white-flagged ships loading and unloading in Indonesian waters and the number of loading and unloading workers. Elfrida Ratnawati Gultom stated that the number of ships with red and white flags in 2022 is 99,982 units consisting of freighters, passenger ships, and fishing boats. Of course, the increase in the number of 17 freighters, passengers, and fish influenced the increase in the number of loading and unloading workers. In Indonesia, there are currently 111 cooperatives that carry out loading and unloading labor services. The 111 cooperatives have deployed a total of 76,000 – 80,000 stevedoring workers. For members of the Tanjung Perak unloading workforce amounted to 3661, in Belawan Port in the 2009 financial year was 3,458 people. 18
Loading and Unloading Labor Cooperative
The increase in the number of ships as an implementation of the cabotage principle can affect the increase in the number of loading and unloading workers. The existence of stevedoring labor cannot be separated from stevedoring labor cooperatives. The stevedoring workforce is a member of the Loading and Uploading Manpower Cooperative.
What is the meaning of a stevedoring labor cooperative? The stevedoring labor cooperative is an independent business entity, which is a forum for stevedoring workers at the port.
19 Who formed the Port Stevedoring Labor Cooperative? Loading and unloading labor cooperatives located at ports, are formed from members, by members, and for members based on laws and regulations governing cooperatives. Currently the law governing cooperatives is Cooperative Law Number 25/1992. What is a cooperative? A cooperative is a business entity consisting of legal entities or individuals who base their activities on the cooperative principle, which is a people’s economic movement based on the principle of kinship. The cooperative principle is that membership is open and voluntary;
its management is democratic; the distribution of the remaining business results in proportion to the number of business services of each member carried out fairly; provision of remuneration according to capital; independence.20
15 Shipping Act, 2008, s. 56.
16 ibid., s. 57.
17 Elfrida Ratnawati Gultom and Siti Nurbaiti, ‘Tenaga Kerja Bongkar Muat Pasca Pemberlakuan Asas Cabotage Di Indonesia’ (2022) 5 JURNAL USM LAW REVIEW 796 <https://journals.usm.ac.id/
index.php/julr/article/view/5788>; Winibaldus Stefanus Mere and Otto Gusti Ndedong Madung,
‘Disruptions and Corporate Human Rights Responsibility’ (2022) 6 Journal of Southeast Asian Human Rights 277 <https://jurnal.unej.ac.id/index.php/JSEAHR/article/view/34526>.
18 ‘Interview with Ach. Kholik Chairman I, Management of the Tanjung Perak Work Business Loading and Unloading Cooperative 8 August 2023.’
19 Regulation of the Minister of Cooperatives and Small and Medium Enterprises 2023, s.2.
20 Cooperatives Act 1992., s. 1.7.
A further study of cooperatives is about ownership. Who owns the cooperative? The owner of the cooperative is a member of the cooperative. Cooperative members are also users of cooperative services.21 The next question is about the obligations of cooperative members. Cooperative members must abide by the rules, participate, and develop the cooperative. Members of the cooperative must comply with the rules of the cooperative contained in the articles of association and bylaws of the cooperative. Another rule that must be followed by cooperative members is an agreement resulting from the decision of the member meeting. Members of the cooperative are obliged to participate in every business activity carried out by the cooperative. Cooperative members are obliged to maintain togetherness and develop the cooperative based on the principle of kinship.
After we know the obligations of cooperative members, it is natural that we know the members of the cooperative. The first right of cooperative members is to attend member meetings and argue or vote at member meetings. The second right of cooperative members is to elect and/or be elected as administrators or supervisors. The third right of cooperative members is to apply for a member meeting by the articles of association.
The fourth right of cooperative members is to give opinions or suggestions to the board outside the members’ meetings voluntarily at request or without request. The fifth right of cooperative members is to use the cooperative and get equal service among members.
The sixth right of cooperative members is to obtain information about the development of the cooperative by the cooperative’s articles of association and laws and regulations.22 The object of this study is a case that occurred in a cooperative that carried out loading and unloading work in the field of work of the stevedoring service business unit at the port of Belawan. The research focused on the legal relationship of the loading and unloading work based on the Supreme Court decision number 386K/Pdt.Sus-PHI/2017.
This case occurred between the Main Loading and Unloading Manpower Cooperative of the Belawan Port stevedoring business unit and Horas Hugo Gultom. This cooperative has been established since October 18, 1989. The articles of association of the cooperative were made on August 5, 1995, Number 103/UPA/1995. These articles of association were ratified by the Department of Cooperatives and Small Entrepreneurs Development of the Republic of Indonesia on August 31, 1995, based on the Decree of the Minister of Cooperatives and Small Entrepreneurs Development of Indonesia Number 31/PAD/
KWK.2/IX/1995.
Loading and Unloading Manpower
The stevedoring workforce is a member of the stevedoring labor cooperative. The study of stevedoring labor, in this study, specifically about substance, is divided into two, i.e., subjects and objects of law. The study of the substance of legal subjects in stevedoring labor is limited to who the legal subjects are, how legal relations occur between legal subjects, and what the legal consequences are.
Who is stevedoring labor? Loading and unloading workers are members of stevedoring labor cooperatives, which meet certain administrative and technical requirements, work in the field of loading and unloading activities, which are managed in the container of stevedoring labor services cooperatives. 23 The limitation of the definition of loading and unloading labor according to laws and regulations has three elements. The first element, stevedoring labor is a member of the stevedoring labor cooperative. The second element, stevedoring labor is a person who works in the field of loading and unloading activities.
21 ibid., s.17.1.
22 ibid., s. 20.
23 Regulation of the Minister of Cooperatives and Small and Medium Enterprises 2023, s.1.2.
The third element is that the existence of stevedoring workers is managed in the container of stevedoring labor service cooperatives.
There are four legal subjects contained in the legal relationship related to loading and unloading labor services. The first subject of law is stevedoring labor cooperatives. The second subject of law is loading and unloading labor. The third legal subject is the Port manager (where there is such a stevedoring labor cooperative). The fourth subject of law is the user of loading and unloading labor.
Workers who perform loading and unloading work are workers who meet certain technical and administrative requirements. The worker performs stevedoring work organized or managed by a stevedoring labor cooperative. A stevedoring labor cooperative is a business entity consisting of workers who carry out loading and unloading work at certain ports that provide stevedoring labor services, by basing activities based on the principles of work efficiency and effectiveness to achieve work productivity levels, increase welfare security, and work protection.
The administrative stages must be fulfilled by stevedoring workers, namely registering, making my work group, providing loading, and unloading workers, and arranging work rotation from stevedoring workers. This arrangement of job rotation must pay attention to the will of the user. Loading and unloading workers who meet administrative requirements are entitled to protection and welfare guarantees. A form of protection for workers who carry out loading and unloading is a guarantee of transportation. The guarantee of getting work tools obtained by stevedoring workers is work clothes, work shoes, gloves, masks, and helmets. Workers who carry out loading and unloading work also get social security, which consists of health care insurance for workers and their families, work accident insurance, and death insurance. Other benefits obtained by stevedoring workers are education and training allowances, holiday allowances and housing allowances.
The service mechanism of loading and unloading labor cooperatives to service users.
Starting from the request from stevedoring service users for the needs of stevedoring labor to stevedoring labor cooperatives in accordance with the number and quality of stevedoring labor desired. At the request of the user, the stevedoring labor cooperative prepares or provides stevedoring labor services according to the request of stevedoring service users.
Users of stevedoring labor services could file objections to stevedoring labor cooperatives if the stevedoring labor provided is not in accordance with productivity targets. If the objection raised by the stevedoring labor service user does not obtain a settlement from the stevedoring labor cooperative, then the stevedoring service user, can submit a request for a replacement of the work team at the end of the Sif. In the case of loading and unloading activities of certain types of goods such as liquid bulk, dry bulk, and the like carried out using conveyor equipment, pipanization floating cranes, and/or other similar mechanical devices, then these activities can only be carried out by stevedoring workers who have qualified expertise or skills in operating the equipment as required and the amount in accordance with the required. Loading and unloading labor activities are carried out through requests from stevedoring labor service users to stevedoring labor cooperatives and only receive stevedoring labor wages, in accordance with the qualifications and number of stevedoring workers used/worked.
Loading and unloading activities at the terminal, specifically carried out by stevedoring companies established by special terminal managers, other stevedoring companies
appointed by special terminal managers using stevedoring workers appointed by special terminal managers for their own purposes.
The working area of the stevedoring labor cooperative is within the working environment area and the local Port of interest area. All work carried out by stevedoring workers either inside the port area or outside the port area, in coordination with cooperatives, is all under the supervision and construction of the nearest port. Standard loading and unloading work for each terminal and/or type of goods in loading and unloading is carried out based on the Regulation of the Director General of Sea Transportation Number Hk.103/2/18/
DJPL-16. This regulation aims to improve loading and unloading performance, through regular supervision and evaluation of the workings of the loading and unloading labor team at each terminal and the number of working days.
Members of stevedoring labor cooperatives are owners and users of cooperative services recorded in the member register book. Members of the stevedoring labor cooperative consist of stevedoring and non-loading workers. The requirement to be a member of the stevedoring workforce is to be 18-55 years old; have at least a junior high school education or equivalent; physically and spiritually healthy; and have competence as needed24 as evidenced by a work competency certificate/training certificate/work experience certificate in the field of port loading and unloading.25
The next question is whether stevedoring workers are stevedoring labor cooperative workers. stevedoring labor is not a stevedoring labor cooperative worker, because stevedoring labor is the owner of the stevedoring labor cooperative. Can the owner of a cooperative be interpreted the same as the owner of a company? Company owners can be categorized as entrepreneurs based on labor law. The owner of the cooperative is not the owner of the company. Cooperatives are different from corporations. Cooperatives are owned by members of the cooperative. Workers who carry out loading and unloading work are members of the cooperative as well as the owner of the cooperative. Indeed, this shows the dualism of arrangements regarding loading and unloading labor. The first regulation is the provision on cooperatives which stipulates that stevedoring workers are members of cooperatives and owners of cooperatives.26 The second arrangement is on employment.
In labor law, the main legal subjects are employers and workers. The definition of an entrepreneur is an individual, partnership, or legal entity that runs a self-owned company;
that independently runs a company that does not belong to him; located in Indonesia representing companies domiciled outside the territory of Indonesia. 27 The owner of the company can be called an entrepreneur.
This is different from cooperatives. The owner of the cooperative is a member of the cooperative. Cooperatives cannot be owned by entrepreneurs. The entrepreneur’s goal is to seek profit to run his company. The purpose of cooperatives is to prosper their members. So stevedoring workers cannot be said to be “workers” of stevedoring labor cooperatives when viewed from the aspect of cooperative ownership. So, a cooperative is not a company.
Discussion
Employment Relationship Status of Loading and Unloading Workers
24 ibid., s. 6.1-2.
25 ibid., s. 7.1.
26 Cooperatives Act 1992 (n 20)., s. 17.1.
27 Manpower Act 2003., s. 1.5.
A legal relationship to do work can be done through an employment agreement, service agreement, work contracting agreement, or in the legal form of doing other work (innominate contract). Employment relationship is a form of legal relationship. There are three mandatory elements that must exist in the employment relationship, namely the existence of work, the existence of orders, and the existence of wages. The three elements are cumulative not alternative, meaning that a legal relationship can be said to fulfill the elements of an employment relationship if there are three elements.28
Loading and Unloading Work
Loading and unloading work is carried out after the existence of a sea freight agreement (between the shipper and the ship owner) and a loading and unloading agreement (between the ship owner or carrier and the loading and unloading company located at the destination port). In the community, the loading and unloading agreement is usually in the form of a work order from the carrier to the loading and unloading company.
Carrying out loading and unloading work, is part of the implementation of transportation service business in the water area. Loading and unloading business activities are more specific, namely unloading goods from and loading onto ships at the port. There are three divisions of loading and unloading work, namely loading, and unloading, cargodoring, and receiving/delivering activities.29 The work of unloading goods from ships to Docks/
Barges/trucks or vice versa unloading goods from Docks/Barges/trucks into ships. It also includes loading and unloading work from and to the ship which is arranged to arrive at the ship’s hold using a ship crane/land crane. Cargodoring, is the work of removing goods from ex-tackle at the Pier, and then transporting the goods from the Pier to the warehouse. The purpose of the warehouse can also include the field of stacking goods.
This arrangement also includes the work of moving goods from the place of accumulation of goods in the warehouse/field and then handing them over to the vehicle at the door of the warehouse/stacking field or vice versa.30
Through conventional terminals, container terminals, passenger terminals, or warehouses, loading and unloading of goods from and to ships at the Port can be carried out. A terminal that serves loading and unloading activities in general due to dry bulk or liquid bulk goods is referred to as a conventional terminal. Unlike conventional terminals, container terminals are more equipped with more modern equipment. For example, container crane equipment, gantry cranes, roadblocks, forklifts, or top loaders. The passenger terminal only serves the debarkation or embarkation of passengers from within and outside the country. Warehouse/field (multi-purpose terminal), is a storage warehouse.31
Loading and unloading workers’ work by not being bound by predetermined working times or based on attendance lists or presence. There is no order on the execution of bulk work. Loading and unloading workers perform work at stevedoring enterprises.
The stevedoring company cooperates with the Port manager. Loading and unloading companies cooperate with foreign-flagged ships located at the port. The Port Manager then cooperates with stevedoring labor cooperatives. Loading and unloading workers are members of stevedoring labor cooperatives who are members of the workgroup.
28 ibid., s. 1.15. See also Guy Davidov, ‘Non-Waivability in Labour Law’ (2020) 40 Oxford Journal of Legal Studies 482 <https://academic.oup.com/ojls/article/40/3/482/5836752>.
29 Regulation of the Minister of Transportation 2021., 1.5.
30 Decree of the Minister of Transportation 2002., s. 1.5-7.
31 Chumaida (n 2). See also Chairul Fahmi and Muhammad Siddiq Armia, ‘Protecting Indigenous Collective Land Property in Indonesia under International Human Rights Norms’ (2022) 6 Journal of Southeast Asian Human Rights 1 <https://jurnal.unej.ac.id/index.php/JSEAHR/article/view/30242>.
Labor working on loading and uploading, carry out the transportation of goods from ships flagged by foreign countries located at the Port to the Port and from the Port of ships flagged by foreign countries located at the Port. If the outsourcing system, there is a working relationship between outsourcing employers and workers. This is different from stevedoring workers who are not stevedoring labor cooperative workers, because stevedoring workers are members of the cooperative as well as cooperative owners. So, the working relationship that occurs between stevedoring workers and stevedoring labor cooperatives is not a legal relationship
The loading and unloading work that is the object of this study is based on the Supreme Court Decision Number 386K/Pdt.Sus-PHI/2017. PT Pelindo at the international container terminal opposite sector four divided the loading and unloading work of goods into 44 work teams. Each work team group has 12 members. Eleven members and one coordinator. Horas Hugo Gultom became a member of Working Team Group 185. Before the work started, 12 people had received money to carry out loading and unloading work belonging to PT Pelindo. In this case, Horas Hugo Gultom had received a jar but did not do the work. Due to the actions of Horas Hugo Gultom who did not want to work, the coordinator and members of the work squad group, became angry so they expelled and replaced Horas Hugo Gultom with someone else. 32 So, the working team group has removed Horas Hugo Gultom, from the work squad. The legal consequence of a person’s exit from the group of stevedoring labor squads in a cooperative is a change in the type of worker. Change from organic workers to non-organic workers. The exit of a person from the working squad group from the loading and unloading workforce does not lead to the loss of membership in the cooperative. Horas Hugo Gultom has lost member number 185, but he has not lost his cooperative membership. The loss of membership number 185 of PT Pelindo resulted in him no longer being able to carry out loading and unloading work with PT Pelindo’s wholesale and rotating system at the Belawan international container terminal again with his work team.
Due to the statement that Horas Hugo Gultom has been expelled from the work squad, the question that needs to be discussed is how does loading and unloading work. Loading and unloading workers can carry out loading and unloading work if they are members of the loading and unloading labor cooperative. Loading and unloading workers as organic workers who are included in the work squad group. The working squad group carries out the loading and unloading work of the stevedoring company. The stevedoring company entered a legal relationship with the Port manager. Port Management collaborates with stevedoring labor cooperatives to carry out the work provided by stevedoring companies.33 The way loading and unloading labor works is like how workers work with an outsourcing system. An outsourcing company is a business entity in the form of a legal entity that is qualified to carry out certain work based on an agreement agreed with the employer company,34 worker protection, wages, welfare, work methods, and disputes that arise, being the responsibility of the outsourcing company, including transferring in the event of a change of outsourcing company.35
There are three legal subjects in two legal relationships in the outsourcing system. The first legal relationship is between the outsourcing company and the employer company. The
32 [2017] 2 SC 386.
33 PT Pelabuhan Indonesia (Persero) Regional 3, ‘FGD on Manpower Supervision in Support of TKBM 3 Governance’ (2023).
34 Government Regulation Number (2021) 35. s. 1.14.
35 ibid. 35 s. 18-19.
second legal relationship is between outsourcing companies and workers. The first legal relationship is a legal relationship about cooperation. The second legal relationship is an employment relationship. Among labor law experts, the status of employment relations in the outsourcing system is debated. The worker performs work at the employer’s workplace.
The one who gives the day-to-day work order is the employer, not the outsourced employer.
It will be justifiable if the day-to-day work ordered is an outsourced employer located at the employer’s workplace. Unfortunately, not all outsourcing systems implement this.
Is the element of work fulfilled in the employment relationship between stevedoring workers and cooperatives? Yes, there is. There is stevedoring, which consists of stevedoring, cargo during, and receiving/delivery work, which is carried out by stevedoring/unloading workers. The three jobs that existed after the Primary Cooperative from the Effort Work Unit of the Loading and Unloading Service Business Unit of Belawan Port received a work order from Pelindo.
The Command Performs Loading and Unloading Work
Orders to perform loading and unloading work are limited to vicarious liability, meaning orders that do not give rise to direct liability. The command to do the work must be standard (intra vires). If workers perform work in accordance with predetermined standards and it turns out that the results are not as expected, they cannot be held responsible for the results of the work. Standard is in accordance with the limits of legislation, treaties, or customs.36
Is the element of order fulfilled in the employment relationship between stevedoring workers and cooperatives? Whether or not there is an element of order is a debate because the primary TKBM cooperative effort to work the loading and unloading service business unit of Belawan Port does not directly give work orders to stevedoring workers.
The cooperative does not give orders, but the cooperative forms a working team group consisting of organic members of the cooperative. This group of 12 work teams worked on loading and unloading work from PT Pelindo.
The allowance will be given by PT Pelindo to the coordinator of my work group as a sign that my work group can start loading and unloading work. The remaining rewards from the tuition will be received by the work squad group after my group has completed the work. All problems that occurred in the work group were resolved independently and deliberated by 12 members of the working team working group. Sanctions for members of the work team group are given by the work team group itself because of deliberation. The imposition of sanctions has nothing to do with cooperatives. The cooperative has never sanctioned members of the work squad group who make mistakes. The form of sanctions for violations or mistakes committed by members of the work team group is to expel the person who made the mistake from the work team group. The departure of Horas Hugo Gultom from the work squad group, occurred at the behest of the coordinator of the work squad group. The order of exit or loss of membership number 185 belonging to Horas Hugo Gultom, did not originate from the cooperative.
Wages Of Loading And Unloading Labor
Wages are workers’ rights received and expressed in the form of money in return from employers to workers who are determined and paid according to work agreements, agreements, or laws and regulations, including benefits for workers and their families for a job or service that has been done.37
36 Civil Code, 1603b.
37 See Article 1 number 30 of the Manpower Act 2003 (n 27).
The wages of stevedoring labor are based on the number of days he performs work. In one month, the loading and unloading workforce performs less than 21 days of work.
In contrast to Umar Kasim’s statement, which states that stevedoring workers are not daily workers (freelance) is the jurisprudence of the Supreme Court Decision Number 386 K/Pdt.Sus-PHI/2017. This jurisprudence is related to the case between the Primary Cooperative Effort Karya Loading and Unloading Service Business Unit Belawan Port and Horas Hugo Gultom. This jurisprudence was decided on May 16, 2017, by a panel of judges chaired by Dr. H. Zahrul Rabian, S.H., MH., with member judges H. Dwi Tjahyo Soewarsono, S.H., MH and H. Buyung Marizal, S.H., MH. The content of the Supreme Court decision Number 386 K/Pdt.Sus-PHI/2017, is to state the legal relationship between the parties based on a daily or freelance work agreement. The right to workers is only separate money of 15% x 3 x monthly wages (Rp. 237,000) = Rp. 916,000.
Are the workers who carry out loading and unloading workday laborers? Day laborers are workers who perform certain jobs whose type and nature or activities are not fixed, work on changes in the time and volume of work, and payment of wages based on attendance.
The number of days worked in a month must be less than 21 days. If the number of working days in one month is 21 days or more and is carried out consecutively for three months.
Then the daily work agreement is no longer valid and for the sake of law it changes to an indefinite time work agreement.38
It is interesting to discuss, how many working days of stevedoring labor in a month. Loading and unloading workers work in groups or work squads for one month, the maximum is 20 days. Do stevedoring workers earn wages based on attendance? Yes. Does the daily worker provision apply to stevedoring labor? Not. Why? Because loading and unloading workers are not workers. The stevedoring workforce is a member and owner of the cooperative.
The legal relationship that exists between stevedoring and cooperative labor. The legal relationship is not an employment relationship. Loading and unloading workers carry out work by order of stevedoring companies. Loading and unloading companies carry out legal relations of contracting work with ships loading goods at sea to the Port or vice versa. So stevedoring workers are not day laborers. Unfulfilled elements of employment relations based on daily workers (freelance). 39
The rights arising in the legal relationship between stevedoring workers and the Primary Cooperative TKBM Effort Work Unit of the Loading and Unloading Service Business Unit (UUJBM) of Belawan Port as determined from the results of the annual meeting of Cooperative members are not the main element in Supreme Court Decision Number 386 K/Pdt.Sus-PHI/2017. The allocation of the remaining operating results consists of 20%
capital reserves, 60% for members, 5% for management and supervisory funds, 5% for education, 2.5% for social funds, and 2.5% for the development of working areas. There is no component of severance pay, service period award money, and/or rights replacement money in the allocation of the remaining business results of the Main Business Cooperative, Business Work Unit TKBM Belawan Port40,
38 Government Regulation Number (2021) 35 (n 34), s. 10..
39 Umar Kasim and others, ‘Reformulation of Work Relationships on the Outsourcing System in Indonesian Order to Protecting the Rights of Workers’ [2020] Journal of Law, Policy and Globalization
<https://iiste.org/Journals/index.php/JLPG/article/view/54845>; Rosita, ‘Quo Vadis Pekerja Anak Pada Perkebunan Tembakau Di Kabupaten Jember’ (2017) 2 Petita : Jurnal Kajian Ilmu Hukum dan Syariah.
40 ‘Akta Notaris Dicki Petrus Sebayang, Medan Nomor 06 Tentang Penegasan Notulen Rapat Perubahan Anggaran Dasar Primer Koperasi TKBM Upaya Karya Unit Usaha Jasa Bongkar Muat (UUJBM) Pelabuhan Belawan, Tanggal 19 Maret 2008, Pasal 42.’
Separation money provisions apply to workers who resign. The amount of segregated money is not regulated in the Manpower Law or its implementing regulations. The amount of separation money is determined internally by employers stipulated in the Collective Labor Agreement, Company Regulations, or employment agreement. If the separation money has not been arranged, the employer is not obliged to provide the separation money to the resigned worker.
The provision of 15% of wages per month is only regulated in the Manpower Law regarding the provision of the rights of workers who are dismissed from work. Entitlement is reimbursement money derived from housing and maintenance reimbursement set at 15% of severance pay and/or service award money. Reimbursement money before the Job Creation Law consists of four types, namely annual leave that has not been taken and has not been forfeited; travel expenses for workers and their families to the place of origin;
housing and maintenance reimbursement of 15% of severance pay and/or service award money and; other matters stipulated in the employment agreement, company regulations, and collective labor agreement.41
There are different arrangements regarding the rights of workers who resign after the enactment of the job creation law. Workers who resign of their own accord must meet three conditions cumulatively. The first condition is to submit a written application for resignation no later than three months before the resignation start date. The second condition is not to be bound by official bonds. The third condition is to continue to carry out its obligations until the date of commencement of resignation.42
Workers who resign by meeting three cumulative conditions are entitled to compensation and separation. Indemnity, consisting of annual leave that has not been taken and has not expired, travel costs for workers and their families to the place of initial acceptance to work, and other matters stipulated in the employment agreement, company regulations, or collective labor agreement.43 Split money, according to the rules in the employment agreement, company regulations, or collective labor agreement.44
Legal construction has been chosen by a panel of judges as a method of interpretation in deciding cases. Legal conception is a way to fill the void of laws and regulations with the principle of legal principles or principles, there are three forms of legal construction, namely the analogy of smoothing the law or argumentum a contrario.45 The form of analogy chosen by the panel of judges in carrying out legal construction is to apply the provision of reimbursement money to workers who resign. Analogize the rights of workers who are terminated and applied to loading and unloading labor. The provisions borrowed are reimbursement money from housing reimbursement and treatment and treatment amounting to 15% of severance pay.
Can the provisions for housing reimbursement and medical and treatment reimbursement of 15% of severance pay be applied after the enactment of the Job Creation Law? Formally, the provisions of Article 156 paragraph (4) point d cannot be applied after the enactment of the Job Creation Law. There are changes related to the provisions regarding money in lieu of rights in the Job Creation Act Number 11 of 2020 jo. Government Regulation in Lieu
41 Manpower Act 2003 (n 27), s. 156.4.
42 Government Regulation Number (2021) 35 (n 34), s. 36.1
43 Manpower Act 2003 (n 27); Job Creation Act 2021 s.156.4; Government Regulation Number (2021) 35 (n 34).
44 Government Regulation Number (2021) 35 (n 34), s. 50.b.
45 Muhammad Siddiq et all Armia, ‘Post Amendment of Judicial Review in Indonesia: Has Judicial Power Distributed Fairly?’ (2022) 7 JILS 525; Muhammad Siddiq Armia, ‘Ultra Petita and the Threat to Constitutional Justice: The Indonesian Experience’ [2018] Intellectual Discourse.
of Law Number 2 of 2022 jo. Law Number 6 of 2023 jo. Government Regulation Number 35 of 2021.46
Article 156 paragraph (4) of the Job Creation Act Number 11 of 2020 Jo. Article 156 paragraph (4) Government Regulation in Lieu of Law Number 2 of 2022 jo. Law Number 6 of 2023 jo. Article 40 paragraph (4) of Government Regulation Number 35 of 2021 has removed the provision for housing reimbursement and treatment and treatment set at 15% of the relief money and/or service award money for those who qualify.
In substance, the provisions of Article 156 paragraph (4) point d can still be applied after the enactment of the Job Creation Law, through the determination of the results of the annual meeting of cooperative members.
The statement in the form of a work order from the work team group, raises a follow- up question, namely whether the wage element is met in the labor relationship between stevedoring workers and cooperatives. Wages are given by PT Pelindo to groups of work squads that successfully complete their work. This makes it difficult to find a legal relationship between stevedoring workers and cooperatives. Umar Kasim stated that stevedoring workers are not day laborers. There is no employment agreement, no working time, no direct responsibility.47
In writing, there is no employment agreement in the legal relationship carried out by stevedoring workers. Viewed from the elements of labor relations consisting of three elements cumulatively, namely the existence of work, orders, and the existence of wages that are fulfilled in legal relations carried out by stevedoring workers. This can be interpreted in legal theory, that there has been an oral or silent work agreement between stevedoring workers and cooperatives. The legal theory of the element of labor relations can be applied in the case of the presence or absence of employment relationship status between stevedoring workers and cooperatives.
There are two options for the application of law that use legal construction in the status of legal relations of stevedoring labor. The first option is to analogize stevedoring labor is a day worker. The second alternative is to analogize the legal relationship of loading and unloading workers with cooperatives based on a certain time work agreement based on units of output.
There is an obligation of employers who have an employment relationship based on a certain time work agreement on the unit of results, namely the obligation to provide compensation money. The provision of compensation money exists after the job creation law. For a period of one year after employment, work with the status of his employment relationship based on a written time employment agreement must get one month of wages. Compensation is given proportionally if the working time is less than one year.48 Legal remedies that can be taken by stevedoring workers
Formally, the status of legal relations of loading and unloading, subject to cooperative law.
Employment cannot be prosecuted in accordance with labor law. In substance, the legal
46 Manpower Act 2003 (n 27); Job Creation Act 2021 s.156.4 (n 43); Government Regulation Number (2021) 35 (n 34).
47 Umar Kasim, ‘Status Hukum Tenaga Kerja Bongkar Muat (TKBM)’ (Hukum Online, 2011) <https://
www.hukumonline.com/klinik/a/status-buruh-bongkar-muat-cl5436/> accessed 27 August 2023.
See also Wenny Setiawati, ‘The Prospect of Channeling Dispute Between Labour and Foreign Investor’
(2021) 6 Petita : Jurnal Kajian Ilmu Hukum dan Syariah 65 <https://petita.ar-raniry.ac.id/index.
php/petita/article/view/113>; Ozy, ‘Legal Perspective on the Trade Facilitation Agreement (TFA):
Indonesia Case Studies’ (2016) 1 Petita : Jurnal Kajian Ilmu Hukum dan Syariah.
48 See Article 61 A of the Job Creation Law jo. Article 15 PP 35/2021.
relationship between loading and unloading labor and cooperatives fulfills elements of labor relationship theory, namely the existence of work, orders, and wages. There is no written employment agreement between stevedoring workers and cooperatives. An oral employment agreement is only the result of the interpretation of the fulfillment of the elements of the employment relationship. The rights that can be demanded by stevedoring workers are only limited to the rights that have been agreed upon by the stevedoring workers’ work team. Legal remedies that can be taken by stevedoring workers if they do not obtain their rights, as agreed by the stevedoring labor team group, can file a default lawsuit in the local District Court.
Conclusion
Cooperation in carrying out work is the status of legal relations between cooperatives and workers who carry out loading and unloading work at the port. Workers who carry out loading and unloading work are entitled to something that has been determined from the results of the annual meeting of cooperative members. Formally, the status of the employment relationship between stevedoring workers and primary stevedoring labor cooperatives cannot be said to be an employment relationship because there is no work agreement. Through interpretation, in substance, the status of labor relations between stevedoring workers and primary stevedoring labor cooperatives or work team groups fulfills the elements of labor relations because there are work orders and wages. For the sake of a sense of justice and the provision of legal protection for stevedoring workers, workers’ rights can be provided in accordance with the provisions of labor law through the annual meeting of cooperative members. The recommendation given is that cooperatives can determine additional rights such as rights that should be obtained permanent employment, through the annual meeting of members. For example, the provision of separation money or compensation money.
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