Constitutional Court acts to protect workers' rights

Constitutional Court acts to protect workers' rights

Muninggar Sri Saraswati, The Jakarta Post, Jakarta

Employers can no longer dismiss striking workers or those
implicated in crimes without due process of law, the
Constitutional Court ruled on Thursday.

But the court rejected the motion filed by nine
representatives of various labor unions who demanded that Law No.
13/2003 on manpower be revoked.

Only two of nine judges conducting a judicial review of the
law, Abdul Mukthie Fadjar and Laica Marzuki, voted in favor of
the plaintiffs, saying the law was against the Constitution.

The court annulled Article 158 of the law, which allows
employers to fire workers for allegedly being involved in crimes
or serious mistakes, such as stealing company property or
provoking colleagues to commit unlawful acts.

Dismissal is possible if the workers are caught red-handed or
if they admit their wrongdoings or are reported by their
supervisors.

"The Constitution guarantees that every citizen is equal
before the law. Article 158 of the law, which allows employers to
dismiss their workers for alleged crimes without due process of
law, is against the Constitution, therefore, it must be declared
non binding," Constitutional Court president Jimly Asshidiqie
told a hearing on Thursday.

The Constitutional Court's verdict is final and legally
binding.

As a consequence of the ruling, employers can only dismiss
workers who are fond guilty by the Supreme Court.

The Constitutional Court also scrapped Article 186 of the
Manpower Law that criminalizes participation in a strike or
asking other workers to join a strike. Violation of the article
under the Manpower Law carries a minimum sentence of one month in
prison and a maximum of four years or a fine between Rp 10
million (US$1,098) and Rp 400 million.

"The Court considers the sanctions are not proportional as
they reduce the right to strike and infringe on workers' freedom
of expression, which is a basic right guaranteed by the
Constitution," Jimly said.

The panel of judges also criticized the authorities for
failing to protect the rights of workers.

"It is apparent that the authorities failed to monitor and
enforce the law to protect the rights of workers," the verdict
says.

Abdul Mukthie and Laica presented their dissenting opinions,
saying the Court was supposed to annul more articles in the law.

Both justices highlighted the issue of outsourcing, which is
acknowledged by the law, which they said was against the
"Constitution's paradigm of protecting citizens" as it reduced
workers to a mere commodity.

"The Constitution is based on human rights. It is regretful
therefore, that the Manpower Law is inhumane," the justices said
in their opinion read out by Jimly.

Syaiful Tavip, one of the plaintiffs, expressed regret that
the court failed to revoke articles that recognize outsourcing,
the establishment of working contracts between employers and
worker unions and administrative procedures required to stage a
strike.