OUTSOURCING: DOES THE REGULATIONS MEET THE PURPOSE OF WORKER PROTECTION? - Basil Rhodes Ghazali

OUTSOURCING: DOES THE REGULATIONS MEET THE PURPOSE OF WORKER PROTECTION? By: Basil Rhodes Ghazali  INTRODUCTION o Background Development in Indonesia is carried out in the context of the development of individual and society as a whole. The aim is to create a prosperous, just, and affluent society, both material and spiritual based on the Pancasila and the Constitution of 1945.

In this development, workers have a very important role and position as agents and development goals. This is where labor arrangements are needed, as Law Number 13 of 2003 concerning Manpower (hereinafter referred to as the Manpower Act).

Eventhough the Manpower Act has been drafted as well as possible, but due to the development of society, the regulation needs to be changed. The change plan itself sparked controversy. For workers, there are about 50 articles of revision that will endanger themselves.1 For employers, there are four issues that are crucial for the survival of the business world, such as: wages, severance pay, employment contracts, and outsourcing. 2 For the government, of the many problems, noted at least two issues faced by workers and employers, namely outsourcing and termination of employment. 3 It is worth studying, who is the most hated enemy of workers? With compact they will definitely answer outsourcing. It has long been the practice of outsourcing to enslave workers in Indonesia. Unfortunately, the government has not been able to fix the problem that has undermined the world of labor, which consists of two problems.4 First, workers are paid a lower wage than permanent labor, because paid by service providers rather than employers. Though employers do not need to painstakingly recruit

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Revisi UU Ketenagakerjaan, 50 Pasal Dinilai 'Bahayakan' Buruh, https://www.cnnindonesia.com/nasional/20190830092646-20-425987/revisi-uu-ketenagakerjaan-50-pasaldinilai-bahayakan-buruh, diakses 8 November 2019.

2 Menelaah Sengkarut Revisi UU Ketenagakerjaan antara Pengusaha dan Buruh, https://ekonomi.bisnis.com/read/20191028/12/1164010/menelaah-sengkarut-revisi-uu-ketenagakerjaanantara-pengusaha-dan-buruh, diakses 8 November 2019.

3 Dua Isu Penting dalam Revisi UU Ketenagakerjaan, https://www.hukumonline.com/berita/baca/lt5ad1f2c8b9434/dua-isu-penting-dalam-revisi-uuketenagakerjaan/, diakses 8 November 2019.

4 Praktik Outsourcing, Perbudakan Ala Modern? https://www.republika.co.id/berita/kolom/fokus/13/04/12/ml4cvu-praktik-outsourcing-perbudakan-alamodern, diakses 8 November 2019.

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and train the worker. Employer efficiency and productivity has also increased due to outsourcing practices.

Second, the status as an employee is also unclear. Though workers have been blackmailed by service providers who pay them. Day after day, week after week until the year changes, the status of outsourcing workers has not changed. Fear of being kicked out suddenly always haunts the workforce, not to mention the pay that is not comparable.

Besides enslaving workers, outsourcing in practice also raises a number of violations of workers' rights.5 First, there is no Health Care Guarantee. Work agreements between outsourcing service providers should provide health care guarantees for workers which are also regulated in the Manpower Act. In addition, occupational safety and health must be implemented and implemented in every workplace, at least in the form of Social Security.

Second, no severance pay is given in terminating employment. Outsourcing service providers terminate employment without severance pay or compensation in any form, including the cost of repatriation to the place of origin of recruitment if the second party without a valid reason not come to work for 5 years.

o Basic Regulation  Law Number 13 of 2003 concerning Manpower (hereinafter referred to as the Manpower Act).  Ministrial Decree of Manpower and Transmigration Number Kep. 220/Men/X/2004 of 2004 concerning Conditions of Submission of Partial of Work to Other Companies (hereinafter referred to as Ministrial Decree on Conditions of Submission of Work).  Ministrial Decree of Manpower and Transmigration Number Kep.101/Men/VI/2004 concerning Procedures for Licensing of Worker/Labor Service Provider Companies (hereinafter referred to as Ministrial Decree on Service Provider License).

o Legal Issue Article 4 of the Manpower Law has determined four employment development objectives in Indonesia, namely empowerment, equity, protection, and welfare of 5

Kadek Agus Sudiarawan, “Analisis Hukum Terhadap Pelaksanaan Outsourcing Dari Sisi Perusahaan Pengguna Jasa Pekerja,” Jurnal Ilmu Sosial dan Humaniora, Vol. 5, No.2, Oktober 2016, hlm. 842.

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workers. These four objectives can be used as benchmarks to assess the extent to which existing regulations have been implemented. In this case, one of the objectives, namely the protection of workers, was chosen as a benchmark for discussing labor arrangements related to outsourcing. In other words, we question the extent to which arrangements in various regulations have provided protection for workers, especially regarding wages and employee status?  MAIN ISSUE o Submission of Partial Work There is no explicit term for outsourcing in the provisions of the Manpower Act. However, this term can be seen from the definition of the process that occurs, as stipulated in Article 64, which reads: "The company can hand over part of the work to other companies through work contracting agreements or the provision of services for workers / laborers in writing."

Thus, outsourcing can be done on the basis of an employment contract or providing workers' services. This agreement must be made in black and white.

Normatively, before being regulated in the Manpower Act, the terminology for outsourcing is contained in article 1601 b of the Civil Code governing employment contracting. It is stated that the chartering of work is an agreement of 2 (two) parties who mutually bind themselves together, to surrender a work to another party and the other party pays an amount of price.

The work to be submitted must be carried out by fulfilling a number of strict requirements, as stipulated in Article 65 of the Manpower Act, namely: “a. carried out separately from the main activities; b. done by direct or indirect orders from the employer; c. is a supporting activity of the company as a whole; and d. does not directly inhibit the production process.�

All of the above conditions are cumulative so that if one of the conditions is not fulfilled, then this part of the work cannot be outsourced. Service providers must be legal entities. This provision is necessary because many service providers are not responsible in fulfilling obligations to workers' rights as they should, so workers

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become displaced. Therefore, being a legal entity is very important so that it cannot avoid responsibility, if the service provider by law turns to be an employer. 6 In the Civil Code, the implementation is regulated and further differentiated between chartering the work done by only providing labor services or by providing the material. Provisions like this are no longer regulated in the Manpower Act which has seen social reality develop in society. Thus, there are no more opportunities for companies that are not incorporated to carry out work contracting or worker service providers, which are generally mid-sized companies. Except in that place there really is no such company that is incorporated.

In order to avoid confusion, Article 66 paragraph (1) of the Manpower Act outlines: "Workers / laborers from companies providing workers / labor services may not be used by employers to carry out main activities or activities that are directly related to the production process, except for supporting service activities or activities that are not directly related to the production process."

This provision gives an intrinsic meaning to outsourcing, i.e. no worker must perform the main work at the employer. Because if this is done, then outsourcing is no longer as originally intended.

Meanwhile, service providers in accordance with Article 66 paragraph (2) of the Manpower Act are determined: "Workers / labor service providers for supporting service activities or activities that are not directly related to the production process must meet the following requirements: a.

There is a working relationship between workers / laborers and companies providing workers / labor services. b.

The work agreement applicable in the employment relationship as referred to in letter a is a work agreement for a certain time that meets the requirements referred to in Article 59 and / or an indefinite time work agreement made in writing and signed by both parties. c.

Protection of wages and welfare, terms of employment, and disputes arising are the responsibility of the employer / labor service provider company; and d.

The agreement between the company using the services of workers / laborers and other companies acting as companies providing services for workers / laborers is made in writing and must contain articles as referred to in this law."

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Kadek Agus Sudiarawan, “Analisis Hukum Terhadap Pelaksanaan Outsourcing Dari Sisi Perusahaan Pengguna Jasa Pekerja,� Jurnal Ilmu Sosial dan Humaniora, Vol. 5, No.2, Oktober 2016, hlm. 842.

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o Worker's Agreement In order to protect employees who are placed in the company, several requirements are determined to minimize the negative impacts of this outsourcing system. These conditions must be fulfilled by the employer and employer service companies, so that the workers concerned are protected by their rights and not overexploited. The conditions that must be fulfilled are as follows: 1.

Employment service company is a legal entity and has a permit from the authorized agency.

2.

Pekarja / employees who are placed may not be used to carry out main activities directly related to the production process.

3.

There is a clear working relationship between the worker and the company providing the worker's services, so that the worker who is placed gets an optimal work protection in accordance with minimum labor standards.

4.

The employment relationship must be stated in a written agreement, which contains all the rights and obligations of the parties in accordance with the provisions of labor laws.7 Arrangement of outsourcing when viewed in terms of labor law is to provide

legal certainty in the implementation of outsourcing and at the same time provide protection to workers. Thus the assumption that the employment relationship in outsourcing always uses a certain time / contract work agreement, so that blurring industrial relations is not true. The implementation of outsourcing employment relations has been clearly regulated in Article 65 paragraphs (6) and (7) and Article 66 paragraphs (2) and (4) of Manpower Act. Indeed, in certain circumstances it is very difficult to define or determine the types of work that are categorized as support.

Workers' protection rights include: 1.

Rights relating to work agreements

2.

Right to pay, overtime, THR and leave rights.

3.

The right to social security.

4.

The right to severance pay and rewards if the contract/type of work does not comply with the provisions.

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Sri Rahayu Purwanidjati, op.cit., hlm. 11.

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 CONCLUSION There are already outsourcing arrangements related to worker protection. This arrangement can be said to have generally guaranteed the protection of workers' rights.

This arrangement is stated in the form of the submission of part of the work and work agreement.

BIBLIOGRAPHY

Revisi UU Ketenagakerjaan, 50 Pasal Dinilai 'Bahayakan' Buruh, https://www.cnnindonesia.com/nasional/20190830092646-20-425987/revisi-uuketenagakerjaan-50-pasal-dinilai-bahayakan-buruh, diakses 8 November 2019.

Menelaah Sengkarut Revisi UU Ketenagakerjaan antara Pengusaha dan Buruh, https://ekonomi.bisnis.com/read/20191028/12/1164010/menelaah-sengkarut-revisi-uuketenagakerjaan-antara-pengusaha-dan-buruh, diakses 8 November 2019.

Dua

Isu Penting dalam Revisi UU Ketenagakerjaan, https://www.hukumonline.com/berita/baca/lt5ad1f2c8b9434/dua-isu-penting-dalamrevisi-uu-ketenagakerjaan/, diakses 8 November 2019.

Praktik Outsourcing, Perbudakan Ala Modern? https://www.republika.co.id/berita/kolom/fokus/13/04/12/ml4cvu-praktik-outsourcingperbudakan-ala-modern, diakses 8 November 2019.

Kadek Agus Sudiarawan, “Analisis Hukum Terhadap Pelaksanaan Outsourcing Dari Sisi Perusahaan Pengguna Jasa Pekerja,” Jurnal Ilmu Sosial dan Humaniora, Vol. 5, No.2, Oktober 2016, hlm. 842.

Sri Rahayu Purwanidjati, Penerapan Sistem Outsourcing di Perusahaan Swasta Dalam Perspektif Perlindungan Hukum Hak Pekerja Kontrak, https://www.neliti.com/id/publications/23500/penerapan-sistem-outsourcing-diperusahaan-swasta-dalam-perspektif-perlindungan, diakses 8 November 2019.

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