day 1 law in indonesia

8/8/2019 Day 1 Law in Indonesia

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PROBLEMS IN REGARD WITHPROBLEMS IN REGARD WITHLABOR LAW OF INDONESIALABOR LAW OF INDONESIA


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GRIEVANCE HANDLING AND STRIKEGRIEVANCE HANDLING AND STRIKE1

TERMINATIONTERMINATION :: PREVENTIONPREVENTION ANDAND REASONSREASONS2

3PROCEDURESPROCEDURES OFOF INDUSTRIALINDUSTRIAL DISPUTEDISPUTE SETTLEMENTSETTLEMENTINSIDEINSIDE ANDAND OUTSIDEOUTSIDE OFOF COURTCOURT

TOPICSTOPICS


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SESSION ISESSION IGRIEVANCE HANDLINGGRIEVANCE HANDLING

AND STRIKEAND STRIKE


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1. To mitigate uncomfortable atmospherebetween employer and employee.

2. To prevent decrement of workers performanceand company productivity .

3. To prevent industrial relation dispute that cancreate additional cost for company.

Importance in responding workersgrievance.


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BIPARTITE COOPERATION INSTITUTE

Bipartite cooperation institution as one of facilities tocommunicate workers grievance to Company.

Definition of bipartite cooperation institution:

A bipartite cooperation institution is a communication andconsultation forum on matters pertaining to industrialrelations in an enterprise whose members consist ofentrepreneurs and trade/labor unions that have beenregistered at a government agency responsible formanpower affairs or workers representatives

(Reference: article 1 point 18 labor law 13/2003)


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Duty of bipartite institution

Conduct periodical meeting or as needed.

To communicate company policy and workersdemand to prevent problems in industrial relationsin company.

To convey suggestions, thoughts and opinions tocompany, workers, union in establishing andimplementing company policy.

(Reference : article 4 Ministerial d ecree 32/Men/XII/2008 regardingestablishment and structure ofbipartite institution.)

KWO


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Slide 6

KWONGK1 Shall we add here thatNike CLS rquires a monthly meeting at a minimum with all discussion recorded properly on minute of meeting

and shared with workers?Krittika W., 4/8/2009


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Establishment of Bipartite cooperationinstitution

1. Should be established in a company that has 50workers or more and can be established in each branchof company.

2. Can be established before or after having union.

3. Company and union or workers reps conduct a meetingto decide bipartite institution organization.

4. Structure of bipartite institution written in officialreport which is signed by company and union/workersreps.

(reference: article 106 (1) labor law and article 5& 8 Ministerial decree 32/2008)


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Bipartite institution membership

Representatives from company and union with 1:1composition, with minimum member 6 persons.

If no union, workers representatives are those who areelected democratically.

If there is a union and all workers are unions member, union

officers can decide who should represent them in bipartiteinstitution.

If there is a union and there are some non-unionized workers ,union can decide their representative while non-unionizedworkers can decide their representative who are electeddemocratically.

(reference: article 6 & 10 Man Power Ministerial decree 32/2008)


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Leadership of bipartite institution

Length of service is 3 years.

Structure of bipartite institutionconsist of chairman, deputy, secretary

and member.Chairman position held alternatelybetween company and workers.

(reference: article 11 & 12 ManPower Ministerialdecree 32/2008)


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Recording, reporting and costing of bipartiteinstitution

Bipartite institution should be reported to ManPower office no more than 14 days.

Formation and implementation of Bipartiteinstitution is company responsibility.

Company management reports to local ManPower in every 6 months and local Man Powerreports to Man Power province and Man Power

province reports to Ministry of Man Power viaGeneral-Director of Industrial Relations andJamsostek.

(reference : article 9, 16 & 17 ManPower Ministerialdecree 32/2008)


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Definition of strike

A strike is a collective action ofworkers, which is planned and carriedout by a trade union to stop or slowdown work.

(reference : article 1point23laborlaw13/2003 (UUTK)


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Strike as basic right of workers

Strike is a fundamental right of workers andtrade/labor unions that shall be stagedlegally, orderly and peacefully as a result of

failed negotiation.

(reference : article 137 labor law 13/2003)

Strike is workers right to pushcompany to get agreement.

KWON


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Slide 12

KWONGK2 "Push company to get agreement" sounds like worker can forcefully use strike to pressure management to give consent to their

demands. Is there a way to reword it?Krittika W., 4/8/2009


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The reason of strike

1. Failing to provide normative rights ofworkers.

2. Company did not respond/fulfill

workers demand.

3. Unfair practices by company

4. Workers did not agree with new policyof company.


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1.1. StrikeStrike isis conductedconducted asas aa resultresult ofof failedfailed negotiationnegotiation..

2.2. WrittenWritten announcementannouncement fromfrom workers/unionworkers/union totocompanycompany andand locallocal ManMan PowerPower inin 77 dayday beforebefore strikestrikeinitiatedinitiated..

3.3. ContentsContents ofof aa strikestrike announcementannouncement (at(at minimum)minimum)::

a.a. TimeTime (day,(day, date,date, hours)hours) startstart andand endingending ofof strikestrike..

b.b. VenueVenue ofof strikestrike

c.c. TheThe reasonreason ofof strikestrike..

4.4. SignedSigned byby chairmanchairman andand secretarysecretary ofof unionunion whowhoresponsibleresponsible.. IfIf strikestrike conductedconducted byby nonnon--unionizedunionizedworkers,workers, itit shallshall bebe signedsigned byby representativerepresentative ofofworkersworkers whowho responsibleresponsible forfor suchsuch strikestrike..

(reference : article 140laborlaw13/2003)

Procedure of strike


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Prohibited acts by the workers

If strike happens, workers are prohibited to dothe following:

1. Urge other workers to join strike.

2. Disturb security or public orderliness and orthreaten life safety or property of companyor other party.

(reference: article 137& 138laborlaw13/2003)

K


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Slide 15

KWONGK3 Whatis it?

1) and/or

2) and3) orKrittika W., 4/8/2009


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Punishment for workers

If workers violate or commit in any prohibited acts, theywill receive the following punishment :

Imprisonment of 1 month minimum and 4 yearsmaximum.

Fine of 10 million IDR minimum and 400 million IDRmaximum.

(reference: article 137& 138 jo.186 (1)laborlaw13/2003)

K


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Slide 16

KWONGK4 What does "jo." means?Krittika W., 4/8/2009


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Illegal strike and legal consequences

Strike is illegal if :

1. Not caused by failed negotiation;

2. No announcement to company or Man Power;

3. Announcement made less than 7 days before strike

initiated;

4. Contents of announcement do not fulfill requirement asmentioned; and/or

5. Such strike is undertaken by a public service company or

any company that may adversely affect the people.

(reference: article 3 & 6 Ministerial decree of Man Power 232/2003)

Contd

KW


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Slide 17

KWONGK20 Rewording point # 5 entirely, please double checkif the meaning is consistent with local provision.Krittika W., 4/9/2009


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Illegal strike and legal consequences

Illegal strike can be classified asabsence.

Company can ask workers to resume thework normally 2 times within 7 days bywritten notices. Workers who do notfulfill the notices can be classified asresignation.


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Prohibited acts by the Company

In the event of legal strike, company is prohibited to do thefollowing.

1 Try to stop the strike such as:

a. Give penalty;

b. Intimidation of any kind; or

c. Do unfair transfer to other position.

2. Arrest and/or detain the workers and union officer who dostrike.

3. Replace the workers who do strike with other workers fromother company. or

4. Give punishment or retaliation in any kind to workers andunion officers during and after strike.

(reference article 143 & 144 laborlaw13/2003)


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Punishment for company

For strike which is legal, peaceful, and orderly:

Company who try to stop the strike and/or arrest and/or detain theworkers and union officers, can be punished with a minimum of1year imprisonment and 4 years maximum with or a fine of 100million IDR minimum and 400 million IDR maximum.

when company do retaliation and give punishment or replace theworkers and union officers who do strike, they can get punishmentof1 month imprisonment minimum and 12 months maximum andor fine of10 million IDR minimum and 100 million maximum.

(reference article 143 joarticle 185 (1) &article 144 joarticle 187 (1)laborlaw13/2003)


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SESSION IISESSION II

TERMINATION :TERMINATION :PREVENTION AND LEGALPREVENTION AND LEGAL

PROCEDURES.PROCEDURES.


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Definition of termination

The termination of an employment relationshipis termination ofemploymentrelationship because of a certain thing that results in thecoming of an end of the

rights and obligations of the workerand theentrepreneur(article 1point25laborlaw13/2003).

dispute on termination is dispute caused by no conformity in opinion about ending of workrelation which is did by one of parties. (article 1 act 102/2004 industrial dispute settlement)

The provisions concerning termination of employment under this act shall covertermination of employment that happens in a business undertaking which is a legalentity or not, a business undertaking owned by an individual, by a partnership or bya legal entity, either owned by the private sector or by the State, as well as socialundertakings and other undertakings which have administrators/officials andemploy people by paying them wages or other forms of remuneration.(article 150labor law 13/2003)


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Termination Prevention

Termination should be taken as the last effort aftercompany conducted termination prevention, such as:

1. Wage reduction and facilities for upper levelmanagement. Example:

Bonus or wage reduction for manager and directorlevel.

Eliminate allowance which is not related withemployee welfare, such as executive club or golfclub membership.

Contd

Reference:

1. Circulate letter of Man Power Ministry : SE. 907/Men/PHI-PPHI/X/2004 regarding prevention ofmass termination.

2. Circulate letter of Man Power Ministry : SE.643/MEN/PHI-PPHI/IX/2005regarding prevention ofmass termination.


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6. Reduce working days.

7. Temporary home stay.

Note: company should give full wage(salary and fixed allowances) duringhome stay period.

8. Unpaid leave.

Contd



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9. Stop contract workers.10.Give pension to workers who have rights

Note : compensation for workers which reach the age for pension and company

do not provide pension program.

Severance payment 2 times referred to article 156 (2) labor law 13/2003

Service payment 1 times referred to article 156 (3) labor law 13/2003

Substitution of rights



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If termination is inevitable (mass or individualtermination), the termination

has to be negotiated with workers to getagreement.

During the process, both parties should upholdtheir responsibilities.



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TYPE OF TERMINATION

1. Termination for law

2. Termination through industrial

dispute settlement institution.

3. Termination by worker.

4. Termination by company.

KWO


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Slide 29

KWONGK5 Not sure I understand exactly what does it mean?Krittika W., 4/9/2009


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Punishment for company

Company that have no bipartite institution canbe punished with administrative punishment:

1. Warning

2. Written warning3. Limitation of business activities4. Solidification of business activities5. Cancellation of agreement6. Cancellation of registration7. Partial or entire stoppage of production

machines8. Revocation of permit

(Reference article 190 (1) & (2)laborlaw13/2003)

K

KWONGK7


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Slide 30

KWONGK6 Consolidation???Krittika W., 4/9/2009

KWONGK7 Punished by whom?Krittik

aW.,

4/9/2009


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Termination for law

In principle, company only can terminate worker after receivedLPPHI decision, except in certain matters as following:

1. The affected worker is still on probation provided that such hasbeen stipulated in writing beforehand;

2. The affected worker makes a written request for resignation at

his/her own will with no indication of being pressurized orintimidated by the entrepreneur; or the employment relationshipcomes to an end according to the work agreement for a specifiedtime for the first time;

3. The affected worker has reached a retirement age as stipulatedunder the work agreement, company regulations, collective

labor agreements, or laws and regulations; or4. The affected worker dies.

(Reference: article 151 & 154 labor law 13/2003)

KWONGK8


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Slide 31

KWONGK8 See comment on page 29.Krittika W., 4/9/2009


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Termination through LPPHI (institution for settlementof industrial relations disputes)

In principle, the entrepreneur may only terminatethe employment of the worker after receiving a

decision from the institution for the settlement ofindustrial relations disputes.

(Reference : article 151 & 154 laborlaw13/2003)


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Termination by worker

A worker may file an official request to the institution for the settlementof industrial relations disputes to terminate his/her employmentrelationship with his/her entrepreneur if:

a. Battered, rudely humiliated or intimidated;b. Persuaded and/or ordered the worker to commit acts that against

statutory laws and regulations;

c. Not paid wages at a prescribed time for three months consecutively ormore;

d. Not performed obligations promised to workerse. Orders the worker to perform work outside of that which has been

agreed upon;f. Ordered the worker to carry out work that endangered life, safety,

health and morality of the worker which is not mentioned in thework agreement.

(Reference article 169 (1)laborlaw13/2003)


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Termination by company

An entrepreneur may terminate the employment of a workerbecause the worker has committed the following gravewrongdoings:

a. Stolen or smuggled goods and/or money that belongto the enterprise;

b. Given false or falsified information that causes theenterprise to incur losses;

c. Drunk, drunken intoxicating alcoholic drinks,consumed and or distributed narcotics, psychotropicsubstances and other addictive substances in theworking environment;

Contd

(Reference : article 158 (1) labor law 13/2003)


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d. Committed immorality/indecency or gambled in theworking environment;

e. Stacked, battered, threatened, or intimidated his orher co-workers or the entrepreneur in the workingenvironment.

f. Persuaded his or her co-workers or the entrepreneur todo something that against laws and regulations.

g. Carelessly or intentionally destroyed or let the propertyof the entrepreneur exposed to danger, which caused

the enterprise to incur losses


Contd

(Reference : article 158 (1)laborlaw13/2003)


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h. Intentionally or carelessly let his or her co-workers or theentrepreneur exposed to danger in the workplace;

i. Unveiled or leaked the enterprises secrets, which is supposedto keep secret unless otherwise required by the State; or

j. Committed other wrongdoings within the workingenvironment, which call for imprisonment for 5 (five) yearsor more.

(Article 158(1)laborlaw13/2003)



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Constitution court verdict on Oct04 had cancelled andstated that article 158 labor law has no fixed force oflaw.

Employer who will terminate their worker due towrongdoing, only can terminate the worker after getfixed force of law from criminal judge.

Verdict of Constitutional court regardingwrongdoing


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The reasons that termination is prohibited

a. The worker is absent from work because of illness asattested by a written statement from the doctorprovided that it is for a period of longer than12(twelve) months consecutively;

b. The worker is absent from work because he or she is

fulfilling his or her obligations to the State inaccordance with the prevailing laws and regulations;

c. The worker is absent from work because he or she ispracticing what is required by his or her religion;

d. The worker is absent from work because he or she isgetting married;

(Reference: article 153 (1) labor law 13/2003)


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e. The worker is absent from work because she is pregnant,giving birth, having a miscarriage, or breast-feeding herbaby;

f. The worker is related by blood and or through marriage

to another worker within the enterprise unless sorequired in the collective labor agreement or thecompany regulations;

g. The worker establishes, becomes a member of and or anofficial of a trade/labor union; the worker carries outtrade/labor union activities outside working hours, orduring working hours with approval from theentrepreneur, or according to that which has beenstipulated in the work agreement, or the companyregulations, or the collective labor agreement;

(Reference: article 153 (1) labor law 13/2003)


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h. The worker reports to the authorities thecrime committed by the entrepreneur;

i. Because different of understanding/belief, religion,political orientation, ethnicity, color, race, sex,

physical condition or marital status;

j. The worker is permanently disabled, ill as aresult of a work accident, or ill because of anoccupational disease whose period of recoverycannot be ascertained as attested by the writtenstatementmade by the physician.

(Reference: article 153 (1) labor law 13/2003


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If the company give terminationbecause of reasons at the listed before,

so that termination is cancelled refer tothe law and company have to reinstatethe workers.

Punishment for employer

(reference: article 153 (2) labor law 13/2003)


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If any importunate reason that can make workrelationship discontinued, the employer cancontinue the settlement through LPPHI.

(reference: circulate letter Ministry of Man Pow er. 13/MEN/SJ-HK/I/2005)

Termination caused by importunate reason.


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1. Work for another company

2. Receive gift or reward, directly or indirectly, that caninfluence working behavior in his position or jobs.

3. Lend/borrow money from/to bank client (in bankingindustry)

4. Smoking in no smoking area (in oil and gas industry)

5. Gamble in workplace

6. Using things and documents of company illegally

Example of importunate reason in CLA orcompany regulation.

Contd


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7. Do despotism to subordinate

8. Doing politic activity in the working hours or anotherinappropriate activity to his/her job

9. Communicating passwordto incompetent side

10. Sleeping during the working hours

11. Having own same business

12. Giving consultation/training in business/managementto another side that it is company competence/secret(trading)

Example of importunate reason in CLA or company

regulation.

K

K


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Slide 44

KWONGK9 Not sure what does it mean.Krittika W., 4/9/2009

KWONGK10 Suggestion, substituted with "competing business"Krittika W., 4/9/2009


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Impact of termination

1. As worker, this will suffer him/her also his/her family.Termination causes loss of job and potentially lead toextended unemployment period because of difficultiesto seek new job.

2. Unfair termination by company can impact other existingworkers who might be worried that someday will beterminated as well. This situation will negatively impactproductivity of workers.

3. For society, rising of unemployment can cause social

unrest.


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SESSION IIISESSION IIIPROCEDURES IN HANDLINGPROCEDURES IN HANDLING

INDUSTRIAL DISPUTE SETLLEMENTINDUSTRIAL DISPUTE SETLLEMENTINSIDE OR OUTSIDE OF THE COURTINSIDE OR OUTSIDE OF THE COURT


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Industrial Relations Dispute

Right Dispute

( wages, festivity allowance, leaves, OT,

Severance, allowance, Jamsostek,FOA, strike)

Importance Dispute

(pension age, sabbatical leave,automatic wage increment

Termination dispute

Dispute between Unionin a company

1. Mediation

2. PHI

1.Mediation

2. Conciliation

3. Arbitrate

4. PHI

1. Mediation2. Conciliation

3. PHI

1. Mediation

2. Conciliation

3. Arbitrate

4. PHI

Type of Industrial relations dispute


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1. Mitigate uncomfortable working atmospherebetween employers and company;

2. Prevent decrease of worker performance andcompany productivity;

3. Prevent industrial relations dispute that can

impose costs on company.

Importance to respond to workers grievance


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Total time in addressing case :1 Bipartite : 30 days

2. a. Mediationb. Conciliator : 30 days

c. Arbitrate3. PHI court : 50 days

4. Supremecourt : 30 days---------------- +

140 days

TYPE ARTICLE PARTYDISPUTE ON

RIGHT

DISPUTE ON

CONCERN

DISPUTE

BETWEEN

UNION

DISOUTE ON

TERMINATION

OUTPUT DURATION

BIPARTITE3 - 7 Company

and workersV V V V

Collective

agreement (CA) 30

MEDIATIONI8 - 16 Mediator

V V V VWritten

suggestion orCA 30

CONSILIATION17 - 28 Conciliator

X V V VWritten

suggestion orCA 30

ARBITRASE20 - 54 Arbiter

X V V XPeaceful act/ final

decision 30

PHI COURT55 - 80,

81 - 115

JudgeV V V V

court verdict 50

APPEAL

113 - 115 Supreme

judgeV X X V

court verdict 30

K


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Slide 49

KWONGK11 Should add "unit" of the duration for clarity, e.g. days.Krittika W., 4/9/2009


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PPHI process

1. Bipartite

2. Dispute Recording

3. Settlement out of jurisdiction :

a. Conciliation

b. Mediation

c. Arbitration

4. Settlement by jurisdiction :

a. Claim to PHI (Industrial dispute settlement)

b. Appeal to Supreme court.

c. Reviewed by Supreme court.


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1. If agreement can be reached , then makingcollective agreement (CA)

2. If CA cannot be reached, then propose forproceeding to PHI court of such

jurisdiction.

3. If requester domiciles outside of court jurisdiction when CA reached, then thedispute can be proposed to PHI court in

requester jurisdiction for review incompetent public court

Procedures of dispute settlement through Bipartite.

(Reference: article 6 & 7 labor law 13/2003)

Contd

KWONG


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Slide 52

KWONGK12 Please double check the translation in poit 3 again whether the dispute should be heard in the competent public court or else.Krittika W., 4/9/2009


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4. If bipartite negotiation fails, then one of the parties canregister their dispute to Local Man Power attachingevidence of settlement to bipartite.

5. If evidence of settlement through bipartite is not beingattached, then Local Man Power will give it back for

completion within 7 days maximum.

6. Local Man Power should offer both parties in choosingbetween conciliation or arbitration.

7. If both parties cannot come to an agreement in choosing

between conciliation or arbitration, then local Man Powerwill continue the case to mediator.

(reference : article 6 & 7 labor law 13/2003)

Procedures of dispute settlement through Bipartite.


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1. If dispute settlement through bipartite fails, then both partiescan propose dispute settlement through mediation.

2. Within 7 days mediator should review dispute and arrangemediation court. Witnesses can be summoned to giveinformation.

3. If mediation can come to agreement, then both parties makecollective agreement which is signed by both parties andwitnessed by mediator. The agreement will be registered atlocal dispute settlement institution as an evidence.

Procedures of dispute settlement through mediation.

Contd

(reference: article 8 & 16 labor law 13/2003)


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4. If mediation process fails, mediator should give writtensuggestion to both parties within 10 days maximum from thefirst mediation session. Both parties should respond to thewritten suggestion no later than 10 days. If any party does notrespond to it, they repute reject the agreement.

5. If both parties agree with the written suggestion of mediator,then mediator will support both parties in making collectiveagreement no later than 3 days; and then the agreement willbe registered at local PHI.

6. If both parties or one of them reject the written agreement,

then both or one of parties can propose lawsuit to local PHI.

(reference : article 8 & 16 dispute settlement act)

Procedures of dispute settlement throughmediation.


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Dispute settlement through mediation

T I M E

7 days 10 days10 days 3 days

Detailed

examination

about the

problem

Collective

agreement

Mediation

Court

Response

by both

parties

(reference: article 8 & 16 labor law 13/2003)


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No. Advantages Disadvantages1. As a win-win solution Suggestion of mediator

is not final

2. Quick process and reducetension

Inadequate number ofmediator with enough

capability in mediationskill.3. Informal and flexible

4. Type of settlement isconfidential/private andnot aggressive

5. No fee in mediationprocess

Advantages and disadvantages of mediation


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1. If the industrial relations dispute by bipartite is unsuccessful,so either party can propose the completion by conciliation.

2. After conciliator receive completion of industrial relationshipdispute request, no later than 7 working days, conciliator

should initiate examination on the problem and the latest onday 8th should conduct 1st conciliation session. For conciliationcourt, conciliator can summon the witnesses or expertwitnesses to the court for testimony.

3. If the conciliation process is successful, so all parties willmake collective agreement which are signed by all parties andwill be witnessed by conciliator. That collective agreement isregistered at PHI (Industrial Relations Court) as an evidence.

Dispute settlement through conciliation

Contd

(reference: article 17& 28 dispute settlement act)


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No. Advantages Disadvantages1. win-win solution Recommendation from

mediator does not bindboth parties

2. Quick process and less

tension.

Few qualified mediator

who can handle themediation process.3. Informal and flexible

4. Confidential/private andnot aggressive

5. No fee required onmediation process.

Advantages & Disadvantages of a Mediation Process


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Dispute Settlement trough Conciliation Process

1. Conciliator should finish the case within 30days the latest from the 1st day they receivethe case.

2. Conciliator, who cannot finish the job within30 days, will get administrative sanction(written warning letter/ provisionalrevocation/ permanent revocation)

3. Conciliator has the right to havehonorarium/fee that will be borne bygovernment.

(Reference: Act no 102/2004 article 17&28)

P d f Di t S ttl t Th h


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1. If the dispute cannot be settled by bipartite, thus both partiescan choose mediation process for settlement.

2. After conciliator received request for dispute settlement,conciliator have to investigate the case within 7 days and on8th day should hold 1st conciliation session. For conciliation

trial process, conciliator can ask expert witness to testify.

3. If conciliation process reaches an agreement for settlement,then all parties need to make an agreement letter that signedby all parties and witnessed by conciliator. Those agreement

will need to register at local Industrial Dispute and receiveregistered official document.

Procedure of Dispute Settlement ThroughConciliation Process

Contd (Reference: Act no 102/2004 article 17&28)


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4. If conciliation process cannot reach an agreement, then conciliatormust release the case and send written suggestion to both partieswithin 10 days the latest from the 1st conciliation session. Both partiesmust file written response to conciliator within 10 days after receivingwritten suggestion from conciliator. Any party that does not file aresponse is considered disagreeing with the written suggestion;

5. If both parties agree with written suggestion from conciliator, thenconciliator should assist both parties to make an agreement within 3days since the written suggestion are agreed upon by both parties andsuch agreement will need to be registered at local Industrial Disputeinstitution and receive registered official document;

6. If both parties or one of both parties does not agree or decline writtensuggestion from conciliator, then it can be continued to file a claim tolocal Industrial Dispute court .

Procedure of Dispute Settlement Through ConciliationProcess


Settlement Dispute Through


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W A K T U

7days 10 days10 days 3days

Investigatio

nAgreement

(PB)

Conciliation

Court

Parties'

Position

Settlement Dispute ThroughConciliation Process

(Reference: Act 2/2004 article 17&28)

Ad t & Di d t f C ili ti


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No. Advantages Disadvantages

1. win-winsolution Suggestion fromconciliator does not bindboth parties.

2. Quick process and lesstension

No information providedon conciliatorbackground at local ManPower office.3. Free to choose conciliator

4. Informal and flexible

5. Confidential/private andnot aggressive

6. No fee required forconciliation process.

Advantages & Disadvantages of ConciliationProcess

KW


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Slide 66

KWONGK14 Please review the meaning and suggest alternatives such as "criteria or qualitifcations".Please use the one with most appropriate

meaning.Krittika W., 4/9/2009

Dispute Settlement Through Arbitration


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Dispute Settlement Through ArbitrationProcess

1. Arbitrator have to settle the industrialdispute within 30 days the latest after theagreement for arbitration is signed.

2. Arbitrator who cannot settle the disputewithin 30 days, can be given administrativepenalties (written warning/ provisionalrevocation/ permanent revocation)


Procedure of Dispute Settlement Through Arbitration


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1. Industrial relations dispute settlement through arbitration must

be made on the basis of agreement between the parties(worker and employer) with dispute stated in writing in thearbitration agreement.

2. Arbitration agreement is made in 3 copies and each party get 1copy that has the same legal force.

3. After the parties signed the arbitration agreement, the partieshave the right to select the arbitrator from the list establishedby the Man Power Minister with the odd number (single or 3arbitrators). If the parties agree to appoint a single arbitrator,then the parties must reach an agreement at the latest within 7

working days after arbitrator is nominated. If the parties agreewith some arbitrators appointed, each party is entitled tochoose an arbitrator at the latest within 3 working days, whilethe third arbitrator will be determined by the appointedarbitrators at the latest within 7 working days to act asChairman of the Arbitration Council.

Procedure of Dispute Settlement Through ArbitrationProcess

Contd (Reference: Act 2/2004 article 29&54)

KW

KW


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Slide 68

KWONGK15 Minister or Ministry?Krittika W., 4/9/2009

KWONGK16 Normally,itis called "arbitration panel"Krittika W., 4/9/2009


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Slide 69

KWONGK17 Minister or Ministry?Krittika W., 4/9/2009


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Slide 70

KWONGK18 Normally,itis called arbitration panelKrittika W., 4/9/2009


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Agreement on allparties (arbitrator

agreement)

Choose arbitratorfrom arbitrator list

determined byGov

SINGLE ARBITRATOR

ARBITRATOR COUNCIL(GASAL)

Agreement onarbitrator

nomination

Each partieschoose

an arbitrator

Appointedthe 3rd arbitrator

(council-

chairman)by arbitrators

Agreement onappointed

arbitrator

7 DAYS

3 DAYS 7 DAYS

30 work days

Extended to14 work days

Scheme of Arbitration Process I


S f


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One of partyfile a request to

IndustrialDispute (PHI)

Court Chairman

Appointedarbitrator by

PHI Chairman

Receive appointedArbitrator in writing fromPHI Chairman

Disagreementin choosing

the single arbitrator/council 30 work days

Extended to14 work days

Agreement on

AppointedArbitrator

Scheme of Arbitration Process II


Advantages & Disadvantages of Arbitration


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No. Advantages Disadvantages

1. Confidential andprivate process

win-lose solution

2. Quick process and

flexible

There is a fee in

arbitration process

3. Free to choosearbitrator

No informationprovided onarbitrator

background at localMan Power office

4. The decision is final

and legally bindsboth parties.

Advantages & Disadvantages of ArbitrationProcess

KW


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Slide 73

KWONGK19 See comment on page 66Krittika W., 4/9/2009


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1. The civil law applicable in general court, except which is set

specifically in UUPHI

2. The parties are not to be charged for the cost of proceeding ifthe value of the claim is under Rp. 150 million.

3. Industrial relations disputes claim submitted to the court ofPHI in the area where the worker works.

4. Claim that does not go through dispute settlement byconciliator or mediator beforehand, shall be rejected by the PHI

judge.

5. Labor unions and employers organizations can act as abarrister in PHI court.

Dispute settlement through PHI court


Di t ttl t th h PHI t


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1. Chairman of the District Court (ketua PN) should set Judicial

Council within 7 working days after receiving claim.

2. Within 7 working days after the Judicial council (majelishakim) are established, they should commence the 1st trial.

3. If one party or both parties does not attend without reason,the Chairman of Judicial Council (ketua Majelis) should set ahearing within 7 working days from the date ofadjournment

4. The Delay of the court because of absence can be granted 2times

Dispute settlement through PHI court

(reference : article 55 & 115act 2/2004)

Dispute Settlement scheme through


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T I M E

29days 7 days7 days7 days7 days7 days

Judicial

Council

Determinat

ion

1st court Hearing 2nd

court

Hearing 3rd

court

Decision DecisionAnnounced

Publish a

copy of

verdict

T I M E

14days 7 days

Consignment

Dispute Settlement scheme throughPHI

(reference: article 55 & 115act 2/2004

Time duration from Bipartite process until


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T I M E

30days30days30days

Bipartite Mediation/

Conciliation

PHI SUPREMECOURT

50days

Time duration from Bipartite process untilSupreme Court


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Thank you

day 1 law in indonesia

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