26 February 2020 (closed)
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Besides regulating legal strikes in Indonesia, which we have discussed in our previous column, the Indonesian government also regulates illegal strikes performed by employees. According to article 142 Indonesian Law number 13 of 2003 regarding Manpower (Labor Law) illegal strikes are strikes which do not fulfill the notification requirements set out in the Labor Law or in case it is disrupting the public interest and/or endangering the public safety. In this week’s column we discuss the legal consequences of an illegal strike.
Criteria to Illegal Strikes
Article 3 of the Minister Decision number KEP.232/MEN/2003 regarding the Legal Consequences of Legal Strikes defines illegal strikes as strikes which have been performed:
1. not because the negotiations between the employer and employees/labor unions have failed. Negotiations are considered to have failed to reach settlement of their industrial relations disputes. This can be caused because the employer is unwilling to negotiate, or because the parties reach a deadlock in their negotiations and state such deadlock in their minutes of meeting of their negotiations;
2. without submitting a notification to the employer and local manpower agency in accordance with the requirements set by the Labor Law;
3. without a notification which has been submitted at least seven days prior to the start of the strike;
4. without fulfilling the notification requirements as set in the Labor Law; and/or
5. at a public company or a company similar to it, which is disrupting the public interest and/or endangering the public safety (we will not further discuss this in this column).
Consequences of Illegal Strikes
In case an employee performs an illegal strike based on point 1 - 4 above, such employee shall be classified as absent for the days performing such strike. In the event the employer has summoned the employee to come to work for two times in a period of seven days, and the employee still does not return to work, such employee is considered to have resigned. In practice the employee and employer are still required to follow the process as mentioned in article 151 of the Labor Law, which requires:
1. Bipartite negotiations between the employee/labor union and the employer; and
2. if bipartite negotiations are not successful a decision is required from the industrial dispute settlement institution.
This column is provided by PNB Law Firm Jakarta