Indonesia’s Journey Towards Adequate Protection for Migrant Labours - Julienna Hartono

Indonesia’s Journey Towards Adequate Protection for Migrant Labours Julienna Hartono Faculty of Law Airlangga University A. INTRODUCTION It is undebateable that the fast growing pace of economic globalization has brought a big impact on workers. One of the significant impact is the increasing number of migrant workers. United Nations Statistic Division defines migrant workers as: “Foreigners admitted by the receiving State for the specific purpose of exercising an economic activity remunerated from within the receiving country. Their length of stay is usually restricted as is the type of employment they can hold. Their dependents, if admitted, are also included in this category.”1 While Law No 18/2017 about Protection for Indonesian Migrant Workers, defines migrant workers as: “Every Indonesian citizens which will, are, or have done jobs and have accepted wage outside Republic of Indonesia teritorial.”2 Indonesian migrant workers are divided into two categories, formal and informal migrant workers. Formal migrant workers are people who works in companies with clear working agreement, while informal workers are people who works for individual. For this category we are more familiar with the terms “migrant labour”. Actually there’s no difference between workers and labours in law terms, but based on people’s presumption, workers refers to job with specific skills with high wage, while labour refers to job that requires no specific skills with lower wage (writer is using term “labour”). In this essay, we’re focusing on migrant labour, because it is an common issue where Indonesian migrant labours are not given protection and fulfillment of their rights while working overseas, yet untill now there is no adequate law or regulations to solve those issues. Based on data

1 Migration Data Portal, “Labour Migration”, www.migrationdataportal.org, 17 October 2019, h.1, visited on 3 November 2019.

2

Law No. 18/2017 about Protection for Indonesian Migrant Workers (Additional Statue Book of Republic of Indonesia No. 6141), Ps. 1.

provided by National Body for Allocation and Protection of Indonesian Migrant Worker, the numbers of Indonesian labor migrant until October 2019 has reached 11.041 individuals.

We can see that the numbers are decreasing, this is caused by the huge number of labor migrant violance. Indonesia Migrant Workers Union noted that in 2017 there were only 91 cases reported to them, while until May 2019 they already got 154 cases. So it is clear that the growing economic globalization is not followed with the guarantee of migrant labour rights.

B. BACKGROUND Brief history of Indonesia Labour Law was started at Dutch Colonial Era, when lots of Indonesia citizens were suffering from slavery; labour considered as an object rather than human, they were owned by their employer, so their wage and food were depended on act of kindess of their employer. The most iconic work of slavery was by Herman Willem Daendles, whom forced labour managed to build 1000 km road across Anyer-Panarukan. But also in this era, people started to realize that the rights of labour must be fulfilled, so Dutch colonial started to legislate law and rules to erase slavery and to promote labour rights, such as

obligation to register slave, prohibition for kids labour, etc.3 Some of these regulations were adopted by Indonesia after their Independence, like Staatsblad No. 647/1925 about Restriction for Child Labour and Night Work for Women, Staatsblad No.8/1949 about Restriction for Kids Labour, etc.4 Most of the regulations were sectoral, meaning that it only regulated certain topic in details, until Law No.13/2003 about Employment came out, which was a unification of Labour Law. But after that, law and regulations about labour kept developing following the economic globalization, one of the development we will be discussing is about migrant labour.

Migrant labours are result of economic globalization where companies are allowed to open job vacany for foreign workers, and foreign workers can easily apply for a job by themselves or through foreign workers institutional. The employment contract for migrant labours also developing, many clauses in the contract is being manipulated to bring advantages only for employers. And since there was an upgrade in employment contract, it must be followed with upgrade in protection for migrant labour too. Writer personally thinks that Indonesia Labor Law especially regulations about migrant labours have failed to keep up with the developing of employment contract between employer and labour. This argument is supported by the fact that numbers of migrant labour cases are high, and if we compare it with other nations law, they already have law and regulations that are more adequate for protecting migrant labour’s rights. This fenomena was caused by lack of both labour’s and government’s awareness about the importance of protection for migrant labours, also the number of unregistered migrant labour is very high, this led to the inability of governments to oversee and to protect its labours, also the government’s poor performance in handling violations of migrant labour’s cases.

3 Lanny Ramli, Hukum Ketenagakerjaan, Airlangga University Press, Surabaya,2008. h. 28.

4 Ibid,h. 28.

Indonesia has 3 basic legal framework for Labour Law. The most important one is the 1945 Constitution of the Republic of Indonesia (UUD NRI). As Indonesia’s fundamental norms, UUD NRI is the main source of every law and regulations belows it, and no law or regulations below it shall violated UUD NRI. Chapter XA of UUD NRI contains provisions about human rights. Since human rights fulfillment is part of Indonesia’s fundamental norms, so evey law and regulations below UUD NRI must contain this provisions. Second legal framework about labour is Law No. 13/2003 about Employment, this Act regulates basic standards for labours and employer, mostly about employment contract, sallary, working time, protection and safety for labours, and labours dispute settlement. The third one is Law No.18/2017 about Protection for Indonesian Migrant Workers, this Act is focusing on migrant labour’s rights, obligations and protection. This Act divided protection for Indonesian migrant labours into three phases, which are before-while-and after work. Law No. 18/2017 is a renewal from the previous Act, which was Law No. 39/2004. The new Act stated that Law No 39/2004 is no longer applied.

C. LEGAL ISSUES In this essay, writer will discuss: 1) Form of labour’s right violations, 2) The different provisions on Law No. 39/2004 and Law No 18/2017, 3) Delegated legislations from Law No 18.2017, and 4) Case study regarding migrant labour.

D. ANALYSIS 1) Form of labour’s right violations Form of migrant labour’s rights violation gets broader through time, it is not limited to physical abuse like in Dutch Colonial Era. Based on a research conducted by National Center for Biotechnological about Work-Related Abuse and Worker’s Right Violation Among Migrants Workers, form of migrant labour’s right violations are divided into 3 categories;

•

Violations of workers rightà includes did not receive any vacation days, did not receive paid sick day, did not receive a written contract, did not receive the financial compensation they are entitled to, require to do more job than requirements, did not accept weekly day off.

•

Work related abuseà includes emotional abuse, physical abuse, and sexual abuse

•

Living condidions àare do not have separate room, do not have separate bed, do not have separate closet, no access to passport, etc.

So the form of violations of migrant labour’s rights are not just in physical form but also non-physial form. Even sometimes migrant labours do not realize that their righst are being violated, so another point being added to a long list of why whe should protect migrant labours.

2) Different provision in Law No. 18/2017 and Law No. 39/2004 Actually Law No. 18/2017 about Protection for Indonesian Migrant Workers are renewal to the previous act which was Law No. 39/2004 about Allocation and Protection for Indonesia Labour Abroad which the old Act is no longer applied.

The significant difference between two Acts is the terms used for labour, the previous act used the term Indonesia Labour or TKI while the new Act uses the term Indonesia Migrant Worker or PMI. The new Act gives hope to more proper protection for Indonesian migrant laboura such as: •

The definition of migrant labours adopted from UN Convention 1990 Arc 1 number 2 Law No. 18/2017 : “Indonesian migrant workers are every Indonesian citizens which will, are, or have done jobs and have accepted wage outside Republic of Indonesia teritorial.”

Whereas the old Act, Arc 1 number 1 Law No. 39/2004: “Indonesian labours are every Indonesia citizens which qualifies to work overseas in certain period of time and receiving wage.”

•

Basic right for labour consist of 13 rights (Arc 6 Law No. 18/2017) whereas the old Act only consist of 9 rights (Arc 8 Law No. 39/2004)

•

Security and safety clausul in working agreement (Arc 15.2 Law No. 18/2017)

•

Social security for migrant labours and their families. (Arc 29 Law No. 18/2017)

•

Law, sosial, and economic protection for migrant labours (part 7 Law No 18/2017)

•

Requirements for the allocation of migrant labours which must be a country with Law about protection for migrant labours, has written agreement with Indonesia, and have social securities for migrant labours (Arc 31 Law No. 18/2017)

•

Regulates task and responsibilites of state in providing protection and develop labour’s skills (Arc 34 Law No.18/2017).

•

Migrant labours allocation is held by state, migrant labour allocator company, and companies (Arc 49 Law No. 18/2017)5

So if we compare to the previous Act, the new Act has given a breakthough in protection for migrant labours. The legislator has succeeded in elaborating details about protection and empowerment of migrant labours, such as social services, security and safety clausul, requirements for the allocation of migrant labours,etc.

3) Delegated legislations from Law No. 18/2017 As an lex generali that regulates migrant labours, Law No. 18/2017 only regulates general provisions, while detailed provisions should be elaborated in delegated legislations. Delegated (or Subordinate or Subsidiary) Legislation refers to those laws made by persons or bodies to whom parliament has delegated law-making authority (enabling clause).6 Law No. 18/2017 contains a lot of enabling clause, for example Arc 29.5 Law No 18/2017: “Detailed provisions about social securities for Indonesian Migrant Worker will regulated in particular Ministerial Decree.”

5 Pedoman Bengkulu, “Hambatan Melindungi Pekerja Migran Indonesia”, www.pedomanbengkulu.com, 22 April 2018, h.1, visited on 3 November 2019.

6 The University of Western Australia, “Legislation: Delegated Legislation”, www.guides.library.uwa.edu.au, 4 October 2019,h.1, visited on 4 November 2019.

The enabling clause above gave birth to the latest and as writer know as the only delegated legislation from Law No. 18/2017 is Minister of Employment Decree No. 18/2018 about Social Securities for Indonesian Migrant Workers. This regulations divided migrant labour’s social services into three categories which are accident insurance (pre-while-after work), death insurance, and retirement insurance (Arc 2 MED No.18/2018). This social securities valid for five months for pre-working phase, 24 months for working phase and 1 month for sent-home phase. But in order to get all of those advantages, migrant labour must register and pay tuitions (Arc 6 MED No.18/2018). The tuitions are Rp 370.000,00 which will be payed gradually; Rp 37.500,00 payed before work, and Rp 332.500,00 payed at least 1 month before departure (Arc 12 MED No.18/2018).7 Eventhough Indonesia has made a breakthrough in protection for migrant labours, there should be more delegated legislations that contain detailed provisions.

Another example of enabling clauses are Arc 36 Law No 18/2017 about law, social, and economic protection for Indonesian migrant labours, Arc 39 Law No 18/2017 about one-stop integrated services for allocation and protection of Indonesian migrant labours, etc, but no delegated legislations have been made about those topics yet. Indonesia is currently asking some civil society organizations for advice that will be used for creating delegated legislations about migrant workers in the future.8 Indonesia Minister of Employment are planning to create 14 delegated regulations, which are consist of

3 Government

Ordinances, 3 Presidential Decrees, 5 Minister of Employment Decrees and 3 Agency Regulations.9 So we can say that Indonesia is still on process to create those delegated legislations from Law No. 18/2017.

7 Joglo Abang, “PERMENAKER 18/2018, Jaminan Sosial Pekerja Migran Indonesia”, www.jogloabang.com, 23 June 2019, h.1, visited on 2 November 2019.

8 Febiola Febrinastri, “KEMENAKER Terus Selesaikan Aturan-Aturan UU Pelindungan Pekerja Migran”, www.suara.com, 23 Juli 2019, h.1, visited on 4 November 2019.

9 Ibid.

4) Case study regarding migrant labour.

There are many cases regarding violation of Indonesian migrant labour’s right.

Let’s take a look at one of the case happened in early 2018, when Adelina, one of Indonesian Migrant Labour in Malaysia was found dead in her employer’s house.

Adelina’s body was found by the police after some neigbours reported that Adelina kept receiving torture and was forced to sleep with her empolyer’s dog in the garage. When the police found Adelina, her head and face was full with bruises, while her legs and arms were full with scars. After autopsy, the cause of death was organ failure and anemia caused by severe trauma from torture. The main suspect of this case was Adelina’s employer named Ambika.Her employer was charged with murder under Article 302 of Malaysian Criminal Law, an offence that carries a mandatory death sentence.10 Indonesia Ministry of Foreign and Indonesia Consulate in Penang personally escorted this case to Malaysia Criminal Court fighting justice for Adelina. Indonesia Consulate was demanding sallary rights and compensation from Adelina’s employer, Ambika. But the result was out of expectation, Malaysia Supreme Court withdrew the charges and released Ambika. The Indonesian Consulate General (KJRI) in Penang shared that the evidence presented to the Court was strong, yet no key witnesses had been summoned to provide information until the High Court dropped the murder charge.11This case provoked anger both Malaysia and Indonesia citizens.

Regarding the release of Ambika, The Indonesian Consulate has sent a formal letter to the vice prosecutor in order to seek clarification and further information pertaining to this case.12 Indonesia Consulate asked Malaysia Distric Attorney to file appeal to Supreme Court of Malaysia. Appeal can only be performed by Malaysia District Attorney because parties in the case were Malaysia District Attorny against defendant, Ambika.13.

10 IDWFED, “Reject Court’s Decision to Drop Murder Charge Against Adelina Lau’s Employer”, www.idwfed.org,29 April 2019,h.1, visited on 5 November 2019.

11 Ibid.

12 Ibid.

13 CNN Indonesia, “Indonesia Minta Kejaksaan Malaysia Banding Kasus TKI Adelina”, www.cnnindonesia.com, 23 April 2019, h.1, visited on 4 November 2019.

As you see from the case above, to protect migrant labour’s right is not easy, because we are talking about more than one nation jurisdictions. The first obstacle was to determine which nation would judge the case. In Adelina case, the defendant was judged in Malaysia, so the applicable law was Malaysia Law. Yet Malaysia Law No.177/ 1967 doesn’t acknowledge domestic workers as workers, so it doesn’t regulates the normative rights of domestic workers. While Indonesia’s Law No.18/2017 has made major improvement regarding protection for migrant labours but cannot be implied in this case, since it fell under Malaysia’s jurisdiction. Other obstable in enforcing migrant labour’s right is we cannot directly involved in the trial if Indonesia doesn’t have jurisdiction to the case. In Adelina case, the defendant was released, and the only one who can file an appeal was Malaysia Disctric Attorney. This process would took more time and another delay on fulfilling Angelina’s rights.

5) CONCLUSION From what was stated above, we can conclude that the violation of migrant labour’s right comes in many forms, not just physical, but also non-phyical violation, such as emotional abuse, not given the proper accomodation, etc. Even sometimes migrant workers do not realize that their righst are being violated. That is why Indonesia must protect their migrant workers, and one of which is through law and regulations. Indonesia regulation regarding migrant worker is Law No 18/2017 about Protection for Indonesian Migrant Workers. Law No. 18/2017 is a renewal from the previous Act, which was Law No. 39/2004. The new Act stated that Law No 39/2004 is no longer applied. If we compare to the previous Act, Law No. 18/2017 has given a breakthough in protection for migrant labour. The legislator has suceeded in elaborating details in protection and empowerment of migrant labour i.e. social services, security and safety clausul, etc. As an lex generali that regulated migrant labour, Law No. 18/2017 only regulates generally, whereas details should be elaborated in delegated legislation, but there is only one delegated legislation from Law No. 18/2017 that has been made which is Regulation of Minister of Employment No. 18/2018 about Social Securities for

Indonesian Migrant Workers. Eventhough Indonesia has made a breakthrough in protection for migrant labour, but its realization is not easy, because we are dealing with more than one nation jurisdiction, we can see from Adelina case, which is fell to Malaysia’s jurisdiction, so practically we cannot apply Indonesia Law. E. BIBLIOGRAPHY BOOKS Khakim, Abdul, Dasar-Dasar Hukum Ketenagakerjaan Indonesia, PT Citra Aditya Bakti, Bandung, Indonesia, 2014 Ramli, Lanny, Hukum Ketenagakerjaan, Airlangga University Press, Surabaya, Indonesia,2008.

INTERNET CNNIndonesia.com(2019,23 April). Indonesia Minta Kejaksaan Malaysia Banding Kasus TKI Adelina. Accessed on 4 November 2019. https://www.cnnindonesia.com/internasional/20190423104903-106388737/indonesia-minta-kejaksaan-malaysia-banding-kasus-tki-adelina.

Febrinasti, Febiola (2019,23 Juli). KEMNAKER Terus selesaikan Aturan-Aturan UU Perlindungan Pekerja Migran.Accessed on 4 November 2019. https://www.suara.com/news/2019/07/23/125403/kemnaker-terusselesaikan-aturan-turunan-uu-pelindungan-pekerja-migran. https://guides.library.uwa.edu.au/c.php?g=324818&p=2177280 IDWFED (2019, 9 April). Reject Court’s Decision to Drop Murder Charge Against

Adelina

Lau’s

Employer.

Accessed

on

5

November

2019.https://idwfed.org/en/updates/malaysia-reject-court2019s-decisionto-drop-murder-charge-against-adelina-sau2019s-employer JogloAbang.com(2019, 23 June). PERMENAKER 18/2018 Jaminan Sosial Pekerja

Migran

Indonesia.

Accessed

on

2

November

2019.https://www.jogloabang.com/ekbis/permenaker-182018-jaminansosial-pekerja-migran-indonesia.

Migrationdataportal.org(2019,17 October). Labour Migration. Accessed on 3 November 2019.https://migrationdataportal.org/themes/labour-migration.

Pedomanbengkulu.com(2018,22 April). Hambatan Melindungi Pekerja Migran Indonesia.

Accessed

on

3

November

2019.https://pedomanbengkulu.com/2018/04/hambatan-melindungipekerja-migran-indonesia/.

The Univesity of Western Australia (2019,4 October). Legislation: Delegated Legislation. Accessed on 4 November 2019.