The much-discussed Job Creation Act appears to have reduced some existing worker rights, although the information is confusing. Despite the company's welcome, it has naturally faced strong opposition from workers. The trade union federation has stated that it will fight by filing a constitutional petition with the Mahkamah Konstitusi, the Constitutional Court, and it appears that multiple unconstitutional petitions have already been filed. This time, let's take a look at what an unconstitutional petition is.

[Focus of unconstitutionality petition]

The current issue with the Job Creation Act is whether the correct process was followed in enacting the law. According to various reports, the problem is that additions and amendments were made to the bill after it was passed by the Diet. If a law tries to enforce something that is different from what was passed, it will be deemed unconstitutional and the entire law will be invalidated. If it is invalidated, the process will have to start over again from the beginning, and the trade unions, who are feeling a sense of victory, are likely to become active in preventing its passage, making enforcement difficult.

On the other hand, many of the unconstitutional rulings to date have focused less on the law-making process and more on whether the law is consistent with higher-level legislation. In Indonesia, the general hierarchy is Constitution Undang-undang Dasar 1945 - Law Undang-Undang - Cabinet Order Peraturan Pemerintah - Presidential Decree/Decision Peraturan/Keputusan Presiden - Ministerial Decree/Decision Peraturan/Keputusan Menteri - Local Ordinance Peraturan Daerah. In other words, if it is proven that the content is different from the higher level law, a judgment may be made to invalidate the entire law or only the violating part. Several provisions of the Labor Law No. 13 of 2003, which is currently in force, have been declared unconstitutional and have been invalidated. As soon as the judgment is issued, it becomes invalid, so it is illegal to carry out any processing based on the law after the judgment is issued.

[How to monitor the constitutionality petition process]

The current job creation law has already been passed by Congress and is now in the presidential approval process. After the President signs the legislation, it will be promulgated by the Ministry of Law and Human Rights and will take effect from the effective date stated in the legislation. On the other hand, unconstitutional complaints are processed in parallel, but it takes a certain amount of time. In other words, normally a ruling is made that a law is unconstitutional after it is enacted, and it is highly likely that the job creation law that was passed will be enforced first. During this time, we will monitor trends while confirming how the contents of each company's employment regulations/labor agreements are related to the Employment Creation Act and considering responses if it is enacted. Depending on how employment rules/labor agreements are written, it may not be possible to change the rules even if the Employment Creation Act comes into effect.

Related legislation: Employment Creation Act (current draft)