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Suara.com – Gadjah Mada University (UGM) Professor of Labor Law, Nabiyla Risfa Izzati, relayed a series of notes behind the Indonesian Parliament’s clarification on the deception of the Omnibus Law on Job Creation.
In the false clarification of the Employment Creation Law presented by the Indonesian Parliament, there were a number of notes that were found to be non-transparent.
Nabiyla explained that she had conducted an analysis using the final draft of the plenary of the Employment Creation Law.
The reason is that there has not been an official draft presented by the government regarding the law that was approved on Monday (10/5/2020).
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The circulation of disinformation related to the contents of the Employment Creation Law in the community cannot be separated from the fact that the government cannot provide access to legal documents.
“This is a bad precedent for the development of laws and regulations in Indonesia,” Nabiyla said. Suara.com, Monday (12/10/2020).
Below are the results of Nabiyla’s analysis of the Indonesian Parliament’s clarification of the Job Creation Act:
1. Is it true that severance pay will be eliminated?
DPR said:
The compensation remains
The facts:
Severance pay still exists, but what is at issue is the amendment to article 156, paragraph 2), which states that the “maximum” severance pay is awarded. Obviously, it has changed 180 degrees from the provisions of the Manpower Law that stipulate the “minimum” severance pay.
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The implication is that companies can provide severance pay under the provisions of the Employment Creation Act. Because, the provisions establish the maximum limit, unlike the Labor Law that regulates the minimum limit.
2. Are UMP, UMK, and UMSP actually removed?
DPR said:
The regional minimum wage (UMR) still exists
The facts:
The correct UMR is still there. In article 88C of the Labor Laws it is mentioned that the governor must establish the UMP and can establish the UMK. What is missing is the Minimum Sector Salary (SMU).
The problem also exists in Article 88C, paragraph 3, which states: the minimum wage is determined on the basis of “economic and employment conditions”.
Compare it with the provisions of article 89 (2) of the Labor Law (this article is eliminated in the Employment Creation Law), which regulates that the Minimum Wage is aimed at achieving ‘needs for a decent life’. Feel the difference well …
3. Is it true that labor wages are calculated by the hour?
DPR said:
There are no changes with the current system. Salaries can be calculated based on time or based on results.
The facts:
The determination of wages based on the unit of time and the unit of performance, remains the same as in the Labor Law. I have not been able to find an article in the Employment Creation Act that regulates hourly wages.
4. Is it true that the right to leave is lost and there is no compensation?
DPR said:
The right to leave remains. Compulsory leave is granted to workers / workers, that is, annual leave of at least 12 days after the worker / day laborer has worked for 12 months continuously.
The facts:
This is correct. The Copyright Act (full version) does not change the provisions on leave (or the exception of not working without pay) in Article 93 of the Labor Act.
Why did this problem arise? Because in the February version of the draft Law for the Creation of Works it is expected to modify the provisions of Article 93. But that means that it is not.
5. Is it true that outsourcing is replaced by a lifetime contract?
DPR said:
Outsourcing to outsourcing companies is still possible. The workers become employees of outsourcing companies.
The facts:
In my opinion, the problem related to outsourcing in the Employment Creation Law is to remove restrictions on the types of work that can be outsourced. Because the Employment Creation Law eliminates article 65 and modifies article 66 of the Labor Law.
The implication is that contract workers will increase because there are no longer restrictions on the types of work that can be outsourced.
6. Is it true that there is no permanent employee status?
DPR said:
Permanent employee status is still available under an employment contract for a specified or unspecified time.
The facts:
Yes, the permanent employee status (PKWTT) still exists. But the problem with the Employment Creation Law is that the maximum term for non-indefinite contracts is abolished (see article 59 of the Labor Law in the Employment Creation Law).
Article 59 (4) UUK regulates PKWT for a maximum of 2 years + extended for 1 year. This provision is missing from the Ciptaker Act.
Article 59 (2) b UUK regulates the jobs allowed for PKWT, which are those that are estimated to have completed a maximum period of 3 years. In UUK it changes to “not too long”.
The implication is that there will be more PKWT in time. This is what worries many parties because the situation of workers with a non-permanent contract is certainly more vulnerable than that of permanent workers.
7. Is it true that companies can lay off unilaterally and at any time?
DPR said:
Companies cannot carry out unilateral dismissals (article 90 relative to the modifications of article 151 of Law 13/2003).
The facts:
Regarding unilateral layoffs, from the plenary version of the Ciptaker bill, I agree that there is the possibility of unilateral layoffs. But, from what is cited by the DPR account, how is it that Article 151 is different from the draft of the plenary, so I do not dare to comment?
8. Is it true that social security and welfare have disappeared?
DPR said:
Social security remains. The insurance covers health, work accidents, old age, retirement, death, loss of employment.
The facts:
This is correct. Throughout my reading, the Employment Creation Law does not change the provisions regarding social security, but adds ‘job loss security’ (although the regulator is still not very clear in my opinion).
9. Is it true that all employees have a daily work situation?
DPR said:
The permanent employee status still exists.
The facts:
Yes, the permanent employee status (PKWTT) still exists. What is at stake is the provision regarding subcontracted workers whose term no longer exists.
10. Is TKA really free to enter?
DPR said:
Foreign labor does not have free entry, it must comply with the requirements and regulations.
The facts:
This is correct. TKA is not free to enter, there are still provisions, namely the ratification of the plan to use foreign workers. There are only exceptions to this provision in Article 42 (3) for certain types of work.
11. Is it true that workers are prohibited from protesting, are they threatened with dismissal?
DPR said:
There are no restrictions.
The facts:
Throughout my reading, section 154A (1) on the reasons for layoffs, there is nothing that correlates with the protest activities of workers.
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