Legal Literacy - This article discusses several options dispute resolution industrial relations ranging from deliberation between parties to through the courts.
Definition of Industrial Relation Dispute
Industrial relations disputes occupy a very important position and attention in the employment aspect in Indonesia. An industrial relations dispute is a difference of opinion/view that results in conflict between employers or associations of employers and workers or laborers as well as Labor Unions/Trade Unions due to disputes over rights, interests, termination of employment, and disputes between labor unions or trade unions within the scope of one company.
The settlement of industrial relations disputes is generally regulated in Law Number 13 of 2003 concerning Manpower and specifically, Law Number 2 of 2004 concerning Settlement of Industrial Relations Disputes (hereinafter referred to as the Industrial Relations Dispute Resolution Law) has been established. This law regulates the procedures for resolving industrial relations disputes that are more repressive through judicial channels.
Types of Industrial Relation Disputes
1. Dispute of Rights
A dispute of rights is a dispute related to the implementation of rights that have been agreed upon in Company Regulations (“PP”) and Collective Labor Agreements (“PKB”), more specifically, a dispute that arises because rights are not fulfilled, due to differences in the implementation or interpretation of the provisions of laws and regulations, employment agreements, PP or PKB. However, rights regulated in laws and regulations or public law cannot be resolved by means of industrial relations disputes, but rather the settlement is through a criminal legal process because it constitutes a violation of laws and regulations.
2. Dispute of Interests
An interest dispute is a dispute relating to disagreements about the making and/or changing of working conditions stipulated in agreements, employment agreements, PP or PKB.
3. Dispute of Termination of Employment (PHK)
A termination of employment (PHK) dispute is a dispute that occurs in connection with disagreements in the implementation of unilateral termination of employment, which will be carried out by the company to workers or laborers, both agreement on the termination itself, the termination process carried out, and the amount of severance pay received.
4. Dispute Between Labor Unions
This is a dispute that occurs between trade unions or federations of trade unions in one company due to a lack of agreement regarding membership, implementation of trade union rights and obligations.
Stages of Industrial Relation Dispute Resolution
The Industrial Relations Dispute Resolution Law mentions that there are 5 (five) ways to resolve industrial relations disputes, namely through the bipartite cooperation institution mechanism, the tripartite cooperation institution in the form of: industrial relations mediation, conciliation, arbitration, and the Industrial Relations Court. The following is a detailed description of the stages of industrial relations dispute resolution.
1. Bipartite Negotiations
The settlement of industrial relations disputes through bipartite means is a negotiation between workers/laborers or labor unions/trade unions or worker representatives with employers/management through deliberation to resolve industrial relations disputes, without involving any third party. This bipartite negotiation is an initial settlement method that must be carried out for each type of dispute involving disputes of rights, disputes of interests, termination of employment disputes, and disputes between labor unions.
Bipartite itself is at the company level, formed as a forum for communication and consultation regarding matters related to industrial relations in the company. All discussions and decisions are recorded in the minutes of the negotiation, and within a period of 30 (thirty) working days after the discussion, an agreement must be reached, which is stated in the form of a "Joint Agreement".
If an agreement is reached, the parties sign the Joint Agreement and register it with the Industrial Relations Court. However, if an agreement is not reached or one of the parties refuses to negotiate, the bipartite negotiation is considered a failure, and one or both parties can register the dispute with the local manpower office by attaching evidence of the bipartite negotiations that have been carried out. The manpower office then offers the parties to agree on a choice of settlement through conciliation or arbitration. If both parties do not determine a choice of settlement through conciliation or arbitration for 7 (seven) working days, the manpower office delegates the dispute resolution through mediation.
2. Tripartite Negotiation
The Tripartite cooperation institution is a forum for communication, consultation, and deliberation with members consisting of employer organizations, labor unions/trade unions, and government elements, formed with the aim of providing considerations, opinions, and suggestions to the government and related parties in the preparation of policies and handling of labor aspects. The Tripartite cooperation institution consists of the National, Provincial, and Regency/City Tripartite Cooperation Institution and the National, Provincial, and Regency/City Sectoral Tripartite Cooperation Institution.
The settlement of industrial relations disputes can be carried out through a tripartite settlement mechanism, namely mediation, conciliation, and arbitration.
3. Tripartite Dispute Resolution: Mediation
In practice, the most frequently chosen tripartite institution is mediation held by the manpower office and carried out by a mediator (intermediary) as a third party at the Regency/City Manpower Office who meets the requirements as a mediator set by the Minister. This mediation can handle all types of disputes, namely rights, interests, termination of employment, and disputes between labor unions within one company.
The mediator must have examined the case and immediately hold a mediation hearing no later than 7 (seven) working days after receiving the delegation of the dispute resolution. If a mediation agreement is reached between the two parties, a Collective Agreement shall be drawn up, signed by the parties, acknowledged by the Mediator, and registered with the Industrial Relations Court at the district court in the legal jurisdiction of the parties making the Collective Agreement.
Conversely, if no agreement is reached, the mediator shall issue a written recommendation in the form of minutes of meeting to the parties no later than 10 (ten) working days from the first mediation hearing, and the parties shall provide a written response agreeing to or rejecting the written recommendation no later than 10 (ten) working days from receiving the recommendation. If the parties agree to the written recommendation from the mediator, the mediator must have completed assisting the parties in drawing up a Collective Agreement, which will later be registered with the Industrial Relations Court to obtain a deed of registration evidence, within a maximum of 3 (three) working days from the agreement.
However, if the written recommendation is rejected by one or both parties, one or both parties may continue the dispute resolution to the Industrial Relations Court (Article 8 – Article 16 of the Industrial Relations Dispute Resolution Law)
4. Tripartite Dispute Resolution: Conciliation
The settlement of industrial relations disputes through conciliation is carried out by one or more neutral conciliators or a third party, namely conciliator services (peacekeepers) appointed and agreed upon by the parties to resolve disputes of interest, termination disputes, and disputes between trade unions/labor unions. The conciliator must meet the requirements as a conciliator stipulated by the minister and be registered with the manpower office.
The conciliation mechanism is regulated in Article 17 to Article 28 of the Industrial Relations Dispute Resolution Law with a process that is almost the same as mediation in the Industrial Relations Dispute Resolution Law, namely if an agreement is reached, a Collective Agreement is made which is signed by both parties and known by the Conciliator and registered at the Industrial Relations Court at the District Court in the legal area of the parties making the Collective Agreement.
Meanwhile, if no agreement is reached, the Conciliator shall issue a written recommendation no later than 10 (ten) working days from the first conciliation hearing to the parties, and the parties are obliged to provide a written response to the recommendation no later than 10 (ten) working days from receiving the recommendation. If both parties accept the recommendation, the Conciliator is obliged to assist both parties in drawing up a Collective Agreement, but if one or both parties do not agree, one or both parties may file a lawsuit with the Industrial Relations Court at the local District Court.
5. Tripartite Dispute Resolution: Arbitration
The settlement of industrial relations disputes through arbitration is carried out by an arbiter (referee or negotiator) who can be appointed by the parties to resolve disputes of interest and disputes between trade unions/labor unions. The arbiter must meet the stipulated requirements, be registered with the agency responsible for labor affairs, and must be legitimized by the minister or official in the field of labor.
Settlement through arbitration is regulated in Articles 29 to 54 of the Law on Industrial Relations Dispute Resolution (UU PPHI), which must be preceded by an arbitration agreement. The arbiter is obliged to start the settlement process by attempting to reconcile the two parties. If the conciliation effort fails, it can be continued with an arbitration hearing.
If an agreement is reached during the hearing, a Deed of Settlement is made, signed by the parties and acknowledged by the Arbiter, and registered at the Industrial Relations Court at the District Court in the area of the party making the Deed of Settlement.
If no agreement is reached, the Arbiter issues a final and binding decision on both disputing parties no later than 30 (thirty) working days from the signing of the letter of appointment of the Arbiter and is registered at the Industrial Relations Court at the district court in the arbiter's jurisdiction. An exception is if the decision is deemed to contain conflicting elements or one of the parties rejects the decision, the decision can be submitted for cancellation/Judicial Review to the Supreme Court within a maximum of 30 working days from the date of the arbitration decision.
6. Industrial Relations Court
The Industrial Relations Court is a method of settling industrial relations disputes carried out by a judicial institution, after receiving a transfer of dispute cases that have not been successfully resolved by bipartite institutions, mediation or conciliation methods. The Industrial Relations Court has the authority to examine and decide on all types of industrial relations disputes, namely:
- First level regarding disputes of rights;
- First and last level regarding disputes of interest;
- First level regarding termination of employment disputes;
- First and last level regarding disputes between Trade Unions/Labor Unions.
This Industrial Relations Court is a form of court that is under the district court institution, with a panel of judges consisting of ad hoc judges and career judges. The submission of a lawsuit by the disputing party must include a record of settlement through mediation or conciliation. If the value of the lawsuit is below IDR 150,000,000.00 (one hundred and fifty million rupiah), it is not subject to fees, including execution costs.
The Industrial Relations Court enforces civil procedural law as applicable in courts within the General Judiciary environment, unless specifically regulated in the Industrial Relations Court Law. The Industrial Relations Court must decide a case within a maximum of 50 (fifty) working days from the first hearing, while the Supreme Court must decide a case within a maximum of 30 (thirty) working days from the date of receipt of the cassation application.
References
Kartawijaya, Adjat Daradjat. 2018. Industrial Relations Comprehensive Approach – Inter Disciplinary Theory-Policy-Practice. Bandung : Alfabeta
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