Prohibition of Employment Termination Due To Marital Bond And Blood Relationship Between Employees in the Same Company


Background

On 5 June 2017, several employees of PLN filed a constitutional review towards Article 153 (1) (f) of Law No. 13 of 2003 on Manpower (“Manpower Law”), as follows:

“Employer is prohibited to conduct termination of employment due to the employee concerned possess blood relationship and or marital bond with another employee in the same company, unless governed under employment agreement, company regulation or joint employment agreement.”

In its petition, the applicant requested the Constitutional Court to annul the phrase “...  unless governed under employment agreement, company regulation or joint employment agreement” as set out in Article 153 (1) (f) of Manpower Law. This is since the provision is very detrimental to employee’s rights due to the following:

  1. It violates the constitutional right of the employees, namely right to work and to receive equal treatment in employment relationship as guaranteed under Article 28 D (2) of the 1945 Constitution of the Republic of Indonesia.
  2. Such provision is very vulnerable to be abused by the employer or other interested party to terminate the employment relationship arbitrary.

Judge Consideration

In its verdict, Constitutional Court declared that employment termination due to marital bond and blood relationship between employees in the same company contradicts with tthe 1945 Constitution of the Republic of Indonesia and does not have legally binding power. Hence, the request from applicant is granted by Constitutional Court.

The limitation as set out in Article 153 (1) (f) of Manpower Law does not fulfill the requirement of the respect towards right and freedom of others. This is because there is no right or freedom of others that is disrupted due to blood relationship and/or marital bond in question.

Judge considered that blood relationship or marital bond is a destiny and embedded to human being, it cannot be planned nor circumvented. Thus, basing on something that is destiny in nature in order to put aside the fulfillment of human rights, in this regards the right to work and to form a family, it cannot be accepted as a valid reason constitutionally.

If the company argued that such provision is made in order to prevent corruption, collusion and nepotism, Judge countered that such things rely heavily on the mentality of each individual.

In regards to the concern of negative things and the emergence of conflict of  interest in decision-making within the company, this can be prevented and anticipated by drafting more stringent regulation to establish high sense of integrity of the employee so that fair and professional working environment is realized.

Decision of the Constitutional Court

Based on the above mentioned legal consideration, the Constitutional Court declared that the phrase “...unless governed under employment agreement, company regulation or joint employment agreement” as set out in Article 153 (1) (f) of Manpower Law contradicts with the 1945 Constitution of the Republic of Indonesia and does not have legally binding power. For that matter, the eemployer is prohibited to conduct an employment termination to the employee due to blood relationship and or marital bond between employees in the same company.


Giok Kinski Maharani Detri Ayusta

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