A strike is a basic right which is owned by the employee and employee unions. Strike is performed by the employee and employee union as a result of the failure of negotiations. Failure of negotiation means the settlement of industrial relations dispute is not achieved which may be caused that the employer is not willing to perform negotiation although the employee union or employee has requested in writing to the employer 2 (two) times within a period of 14 (fourteen) business days or the negotiation which is performed meets a deadlock as stated by the parties in the minutes of negotiations. Under Article 1 number 23 of Law Number 13 of 2003 on Labor (“Labor Law”) strikes means actions of employee which is planned and performed collectively and / or by employee unions to stop or to slow the work.
Strike which is justified by Labor Law is strike which is performed lawfully, orderly and peacefully and be performed in accordance with the provisions of Labor Law. Within a period of at least 7 (seven) days before the strike is performed, employee and employee union shall notify about the strike in writing to the employer and the government institution who are responsible in the field of employment. Notification to employers and government institution who are responsible in the field of employment shall at least contain:
- time (day, date and time) when strike begins and ends;
- place of the strike;
- reasons and the causes of performing strike; and
- signature of the chairman and secretary and / or each of chairman and secretaries of employee unions as the party who is responsible for the strike.
If strike is performed without prior notice to employers and related government institution, employers and related government institution, in order to save production equipment and assets of the company, may take temporary actions as follows:
- prohibit employees who perform strike that are in the location of the production process, or
- if necessary prohibits employees who perform strike within company’s locations.
Government institution and company who receive the notification letter on strike is obliged to give the evidence of receipt. Before and during the strikes, government institution who is responsible in the field of employment has the authority to resolve the problem causing the strikes by gathering the disputed parties and negotiate their problem. If the negotiation between the parties of the dispute is resolved, it must be made in the form of an agreement signed by both sides and the official of the government institution who is responsible in the field of employment shall act as witness. If negotiation between the parties of the dispute cannot be resolved, the official of government institution who is responsible in the field of employment will submit the problem causing the strikes to the industrial settlement disputes institution.
Strike which is performed without fulfilling the provisions of Labor Law is an illegal strike. Under Article 3 of Minister of Labor and Transmigration Decree Number 232 of 2003 on The Legal Consequences Of An Illegal Strikes , it regulates strikes can be categorized to be illegal if it is performed:
- not as a result of the failure of negotiations, and / or
- without notification to employer and the government institution who is responsible in the field of employment, and / or
- with notification but less than 7 (seven) days prior to the strike, and / or;
- content of the notification does not comply with the provisions under Article 140 paragraph (2) letter a, b, c, and d of Labor Law.
Employers, government institution responsible in the field of employment, or the other party cannot prevent the employee and employee unions to perform their right to strike which is performed legally, orderly and peacefully. However employers, government institution responsible in the field of employment, or other parties is also prohibited to arrest the employee and employee union who perform strike which is lawful, orderly and peacefully in accordance with the provisions of Labor Law.
With regards to strike which is performed in accordance with the provisions of Labor Law and conducted legally, orderly, and peacefully, employers are prohibited to:
- replace the employee on strike with other employee from outside the company; or
- give sanction or countermeasure in any form to the employee and employee union during and after the strike.