We have heard many stories telling that employees being terminated by having a marital bond or blood relationship with other employee in the same company. Under the Article 153 (1) (f) of Law No. 13 Year 2003 regarding Manpower (“Manpower Law”), the employers has the rights to terminate their employee under those circumstances, as long such rights have been stated in the employment contract; company regulation; or collective labor agreement. Employers consideration will mostly due to the condition that such marital bond or blood relationship will give effects to their work performance; including the possibility to conduct certain action beneficial for each other position under those marital bond or blood relationship.
Recently the above condition has been changed by the Constitutional Court Decision No. 13/PUU-XV/2017, dated December 14, 2017, which render their decision stated that Article 153(1)(f) of the Manpower Law contradicts the 1945 Constitution (“Decision”). The Decision was given based on the petition submitted by 8 (eight) employees of State Electricity Company on February 2017. The employees in their petition stated that the Article 153 (1) (f) of Manpower Law was contradicting with their 2 (two) most basic rights, as follows:
- Rights to form a family and having their own child, which stated under the Article 28 (B) of Indonesian Constitution 1945; and
- Rights to works as well to obtain wages and fair treatment in an employment relationship, which stated under the Article 28 (D) (2) of Indonesian Constitution 1945
After hearing arguments stated by the House of Representative and by the Indonesian Association of Entrepreneur, the Panel of Constitutional Court renders the Decision based on following considerations:
- the Article 153 (1) (f) of Manpower Law was contradicting, not only Article 28 (B) and Article 28 (D) (2) of Indonesian Constitution 1945, but also contradict with several laws, as follows:
– Article 6 (1) of International Covenant on Economic, Social and Cultural Rights that has been ratified through Law No. 11 Year 2005, as follows: “Countries become party of this covenant recognize rights of works, including rights of all people for opportunity to seek a living through the chosen works or accepted in freewill and will take measures adequate to protect this rights ” – Article 23 (1) of United Nations Declaration on Human Rights, as follows: “Everyone have their rights to freely choose the work; their rights for the manpower requirement that fair and beneficial for them, as well entitled for protection from unemployment” – Article 38 of Law No. 39 Year 1999 regarding Human Rights, as follows: “Every citizen, accordingly to their talent, skill, and ability entitled for the decent work”
- Restriction under the Article 153 (1) (f) of Manpower Law was not fulfill the requirement to honor other people’s rights and freedom, since there was no disturbance over others people’s rights and freedom by the existence of marital bond or blood relationship.
- There is also no prevailing norms, religious value, security or public order has been disturbed by the facts of employee in one company have their marital bond or blood relationship with other employee in the same company.
- Reasoning that the marital bond or blood relationship will give effects to their work performance, cannot overruled the Article 28 (J) (2) of Indonesian Constitution 1945, that stated as follows:
“In carried out their rights and freedom, everyone shall comply with the restriction stipulated by laws for the intention solely to ensure the recognition and honor other people’s rights and freedom and to fulfill fair demand in accordance with moral judgment and religious value”
- When employee and employers sign the employment agreement, they must be in balance position. In practice, the employee was in weak position and they must agree to the stipulation stated in the employment agreement. Following such, the Article 153 (1) (f) of Manpower Law was not fulfill the freedom of contract principle.
In conclusion, the Constitutional Court has adjudicated that the phrase “unless the employment contract, company regulation or collective labor agreement has regulated otherwise” contradicts the Indonesian Constitution 1945 and that such phrase does not have binding legal force. Thus, the Article 153 (1) (f) of Manpower Law now become : “An employer shall be prohibited to conduct a termination of the employment relationship due to the employee having a blood relationship and/or a marital bond with another employee in the same company.” Following such, companies in Indonesia shall revised their employment contract and cooperative agreement with their Employee and now employees from one company may have blood relationship and/or a marital bond with another employee in the same company.