Mechanism of termination of employment (FLE) has been regulated in
Act 13/2003 on Manpower and Act 2 / 2004 concerning Industrial Relations
Disputes Settlement (PPHI). Article 151 of Act on Manpower asserts,
workers and employers should make every effort to avoid layoffs. If
layoffs are unavoidable, then the workers and employers must meet to
seek agreement. But if no agreement is reached, layoffs can only be done
after a determination of the dispute settlement institutions of
industrial relations.
Similarly, the Court’s opinion in the court pronounced the verdict
Case Number 37/PUU-IX/2011, Monday (09/19/2011) housed in the courtroom
Plenary Court Building. Application for judicial review was filed by
Ugan Gandar, President of the Federation of Trade Unions Unite Pertamina
(FSPPB), Eko Wahyu Secretary-General (FSPPB), and Rommel Antonius
Ginting. The constitutionality of the applicant testing this phrase "not
defined" in Article 155 paragraph (2) which states, "During the dispute
settlement ruling institutions of industrial relations has not been
established, both employers and workers / laborers shall continue to
perform all its obligations" According to the Petitioners, the phrase is
contradictory to Article 28D Paragraph (1) and Paragraph (2) of the
1945 Constitution.
In the ruling, the Court granted the petition of the Petitioner.
Court stated the phrase "not defined" in Article 155 paragraph (2) of
Act 13/2003 on Manpower against the 1945 Constitution to the extent not
understood yet binding.
Court argued, layoffs are carried out without the approval of an
industrial relations dispute settlement institutions become null and
void [vide Article 155 paragraph (1) of Law 13/2003]. During the
industrial relations dispute settlement institutions are still examining
the process of layoffs, workers and employers should continue to
perform the duties and obligations of each as provided for in Article
155 paragraph (2) of Act 13/2003.
When the dispute submitted to the Industrial Relations Court as
provided for in Article 24 of Law 2 / 2004, then the dispute shall be
deemed not final and binding until a court decision and binding. If the
phrase "not defined" in Article 155 paragraph (2) of Act 13/2003 is
associated with an industrial relations dispute settlement mechanism,
then there is the potential for legal uncertainty for the parties about
the meaning of the phrase "not defined" in Article 155 paragraph (2) of
Law 13 / 2003.
On the other hand, Article 28D paragraph (1) and paragraph (2) of the
1945 Constitution has determined: "(1) Everyone has the right to
recognition, guarantees, protection and legal certainty of fair and
equal treatment before the law, (2) Every person has the right to work
and receive remuneration and fair and decent treatment in labor
relations. "
Under the provisions of Article 28D paragraph (1) and paragraph (2)
of the 1945 Constitution, according to the Court, there should be a
definite interpretation associated the phrase "not defined" in Article
155 paragraph (2) of Law 13/2003, so there is a fair legal certainty in
implementation of these phrases, so the parties can obtain guarantees
and legal certainty against the acquisition of their rights in the event
of industrial disputes.
According to the Court, the phrase "not defined" in Article 155
paragraph (2) of Law 13/2003 must be interpreted court decisions that
have permanent legal force for the decision of the Industrial Relations
Court one can directly obtain permanent legal force in the first
instance by the Industrial Relations Court, namely decision regarding
conflicts of interest, the decision regarding disputes between unions /
workers in one company, as well as decisions regarding disputes and
layoffs that are not filed an appeal. The decision regarding the dispute
and the rights of appeal filed dismissals have to wait for the decision
of the Supreme Court first new permanent legal force. Court’s opinion,
the petition of the petition is proved and justified by law. (Nur
Rosihin Ana / mh/Yazid.tr)
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