Leaders and Activists of Labour Union filed an application to the Constitutional Court (“CC”) to invalidate Law Number 13 Year 2003 concerning Labor (“Labor Law”).  In a 7-2 Decision, the CC invalidated several provisions of the Labor Law, affecting Articles 158, 159, 160(1), 170, 171, and 186. Rest of the submissions were rejected by majority member of the panel.

Prior to examining the main submission, the CC decides on its authority to conduct Judicial Review and the applicant’s legal standing. The CC held that it has the authority to perform the review in accordance with Article 50 of the Law on Constitutional Court (“CC Law”) as the Labor Law was enacted subsequent to the first Amendment of the 1945 Constitution. The CC also held that although the applicant does not stand as a legal entity, it qualified to submit its application as its legal standing is derived individually or as a group of individual having similar legal interest which therefore fulfilled the requirement of ‘injured parties’ under Article 51 of the CC Law.

The CC then considered that the applicant had requested both formal and material judicial review toward the Labor Law. The request for formal review was deemed to have been submitted as the applicant argue that the enactment procedure of the Labor Law is not compatible with the Constitution. The applicant pleaded that the Labor Law was enacted without an academic draft and that the legislation process of the Labor Law was performed with public lies from the legislator to the public. The CC dismissed all applicant’s arguments concerning the formal judicial review and decide that the enactment and legislation procedure of the Labor Law is constitutional.

The CC move to examine the request toward material judicial review. Applicant requested the CC to invalidate Articles 119, 120, 121, and 106 of the Labor Law on the reason that it was in conflict with the Constitution Article 28, which regulates freedom of expression and organization. Article 119 and 120 of the Labor Law requires labor unions to have member constituting of more than 50% of employee working in the company in order to be represented in the negotiation process and in signing the Collective Labor Agreements (Perjanjian Kerja Bersama). Article 121 of the labor Law requires a member card to prove an employee’s membership in the labor union. Article 106 requires at least 50 people to form bipartite cooperation institution. The CC dismissed applicant submission in this matter and declared that all of the requirements of the Labor Law mentioned above is in ordinary in character as it does not limit the freedom of expression and organization of the labours and that all of the provisions mentioned above is constitutional.

The applicant also requested the CC to invalidate Articles 64-66 of the Labor Law. Articles 64-66 regulates ‘outsourcing’ matter. Article 64 permit companies to outsource its need of workforce from other companies subject to several conditions, among other, that the employee-employer relationship remained exist between the labor and the outsourced company. The applicant argued that Articles 64-66 is employer-heavy as it would enable employer to dismiss labours when they are no longer needed. The applicant also added that this provision is a mode of modern slavery as it considers labor only as a production factor and is therefore incompatible with the provision of Article 33 of the Constitution. The CC held that the Labor Law has given adequate protection to the workers, in that it guarantees the continuation of employer-employee legal relationship at any time, including the possibility of transferring such labor relationship to the outsourcing company should some provision of the Labor Law failed to be executed. The CC added that the protection of labours in outsourcing process is similar to that of ordinary labours. Under the aforementioned reasons the CC decided to dismiss applicant’s request and declare that Articles 64-66 of the Labor Law is constitutional.

The applicant requested the CC to invalidate Articles 137-145 of the Labor Law on the ground that it violates the ILO convention. The CC rejected applicant’s claim and stated that a constitutionality test of a Law must be measured on the paradigm of the Constitution and not by a foreign standard.

The only submissions accepted by the CC are the claim to invalidate Articles 158 and 159 of the Labor Law. The Court also partially invalidated the provisions of Articles 160, 170, 171 and 186 of the Labor Law. Article 158 of the Labor Law permits employer to terminate employment if the person is deemed to have conducted gross offences, either in the form of burglary, theft or other criminal actions. Article 159 gives right to the objected labor to file an application to Industrial Relation Tribunal with regard to his termination.

The CC held it accepted the applicant’s claim that Article 158 is incompatible with the Constitution. The CC elaborated further that the permission granted by Article 158 to employers to unilaterally terminate someone’s employment for criminal actions prior to the institution of criminal legal proceeding and final and binding decision by the Court is in violation of the requirement of due process of law and equality before the law as stipulated under Article 27 of the Constitution. The CC added that the terminated employer’s right to file an objection to the Industrial Relation Court under Article 159 is misleading as it confuse criminal legal proceeding with private legal proceeding. Furthermore, the CC stated that Article 158 tends to be discriminative since Article 160 of the Labor Law applies the presumption of innocence standard toward detained workers whom alleged criminal activity is reported to the police by parties other than the employer.

Two “dissenting opinion” was raised by two judges. Both of the opinion called for acceptance of more of the applicant’s submissions. Given the nature of the different opinion rendered by the judges of the CC, it is probably more adequate to name it as “separate opinion” as the current “dissenting opinion” on the Labor Law case contained no contradictory argumentation. (mma)