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Imprisoning employers?
It has been almost a decade since the House of Representatives passed Law No
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t has been almost a decade since the House of Representatives passed Law No. 21/2000 on Labor Unions, but among workers the law is widely perceived as a mere paper tiger. In reality, discrimination against unionists, unfair dismissals of union supporters and other union-busting practices by employers are still widespread.
Thus a court decision two years ago to sentence a general manager for violating trade union rights under the law was not only unprecedented, but for the workers involved it also signaled that justice might work in a real sense.
On Feb.5, 2008, the Bangli District Court in Pasuruan, East Java, sentenced to 18 months the general manager of a private company who signed the dismissal letters of four union leaders, for violating trade union rights. It was the first ever case of an employer being jailed for violating the law. The Surabaya High Court upheld the verdict, as did the Supreme Court last June.
In labor disputes, workers normally go to the Manpower and Transmigration Ministry or its regional offices and/or the Industrial Relations Court. But the two institutions have little credibility among workers. Laborers regard the ministry and the court as siding with the interests of the companies rather than the workers. District courts are an alternative for them.
However despite the rulings by the three courts, the executive of the private company remains free, while the four union leaders are still denied justice. The law remains only a piece of paper.
To make it more complicated, there was evidence that the decision might also widen the already heady distrust between workers and employers.
In a statement to the press in response to the court’s decision, the employers’ association in the Pasuruan Industrial Estate Rembang (PIER) reportedly expressed deep concern.
“Such a problem should have been solved through the industrial relations law [and not the criminal law],” the association stated, as reported by a local newspaper in January last year (Duta Masyarakat, Jan.21, 2009).
It also complained about the “weak law enforcement” in Pasuruan, and demanded the government, the President in particular, to provide “legal certainty” for doing business in Indonesia. It expressed concern that the case might have a bad impact on the investment climate in the region.
In a statement just after the decision was handed down by the judges, a union leader pointed out: “We accept the decision and will monitor this case wherever it goes. We don’t want the case to be a boomerang for workers.
We, as workers’ representatives, are quite happy with it, and we hope it will not happen again in the future, as this is a lesson for the [labor] law violators.”
This indicates the unionists hoped the case would discourage any more repression of union activists.
The wish was not to imprison the employer, but simply to get the employer’s genuine respect for the workers and their union.
In The Behavior of Law (1976), Donald Black identifies three styles of social control: penal style, compensatory style and conciliatory style. In the context of disputes between workers and employers, some may argue that the conciliatory style perhaps offers a better solution than the penal style.
After the dispute, it is possible that the two parties may have to work together again, thus there should be some room for negotiation for a mutually agreeable outcome for both. This requires some willingness by the two to take some of the blame, while trying to restore the social harmony.
As Black explains, the role of a third party is often important here to facilitate the parties in reaching a mutual agreement.
Here we may refer to the institutions developed by the state through the so-called “labor dispute settlement mechanism”.
In Indonesia, such an ideal style of dispute resolution in labor relations may still need some time to manifest. The distrust between workers and employers has long corrupted the system, while there has not been much effort to resolve this.
Such a decision to jail an employer for misconduct against union activists, however controversial it is, must be seen as merely a stepping stone to balance the current disharmony within the labor law enforcement in the country.
This cannot be done through a single court ruling; instead it should be taken up widely and systematically, involving all stakeholders: workers and their unions, employers and their associations, and the government.
The writer is a lecturer at Atma Jaya Catholic University, Jakarta, and a PhD candidate at
the Van Vollenhoven Institute at Leiden University’s School of Law, the Netherlands.
