Fairness in Dismissal for Business Reasons in Indonesia
Abstract
This article aims to analyze the fairness in dismissal for business reasons under labor practice and law in Indonesia. This is important as an evaluation material for the future regulation of the dismissal. By using statutory and case approaches, there are several steps reflect fairness in exercising the dismissal, i.e: (1) the circumstances justifying the dismissal; (2) the exercising dismissal as a last resort; (3) the negotiations with worker or workers’ representatives was done to settle the dismissal; (4) the employer's obligation to notify the decision of dismissal to workers; and (5) paying the worker’s entitlement upon dismissal. However, the absence of the employer’s obligation to make selection criteria for the dismissal and to notify the decision of dismissal to government has reduced the fairness aspect of dismissal’s procedure for business reasons.
References
[2] Act No.13 Year 2003 concerning Manpower. Indonesia.
[3] Case #217 of the Supreme Court, Indonesia. 2010.
[4] Case #391 of the Supreme Court, Indonesia. 2010.
[5] Case #427 of the Supreme Court, Indonesia. 2011.
[6] Case #43 of the Industrial Relation Courtof Jakarta, Indonesia. 2013.
[7] Case #511 of the Supreme Court, Indonesia. 2012.
[8] Case #660 of the Supreme Court, Indonesia. 2012.
[9] Code of Conduct for Industrial Harmony 1975, Malaysia.
[10] Council Directive 2001/23/EC, European Communities. 2001.
[11] Dau-Schmidt, K. G. et al. 2009. Labor and Employment Law and Economics, Edward Elgar publishing.
[12] DLA Piper. 2013. ‘Guide to Redundancies and Reductions-in-Force in Asia-Pacific.’ DLA Piper. Available at: https://files.dlapiper.com/files/Uploads/Documents/6895587_1_HKGROUPS%282529027_Guide%20to%20Redundancies%20and%20Reductions-in-Force%20in%20Asia-Pacific_JULY2013%29.pdf (accessed January 12, 2017).
[13] European Labour Law Network. 2011. ‘Dismissal (Particularly for Business Reasons) and Employment Protection, Thematic Report.’. European Labour Law Network. Available at: http://www.labourlawnetwork.eu/frontend/file.php?id=218&dl=1 (10 Oktober 2015). (accessed January, 2017).
[14] Harian Surya. 2014. Pensiun Dini 1000 Karyawan: Bentoel Tawarkan Pesangon Lebih Tinggi, Harian Surya Publication.
[15] ILO Convention No. 158 concerning Termination of Employment. International Labour Organisastion
[16] ILO Jakarta Newsletter. 2011. ‘Indonesia the First Country to Adopt the ILO’s Global Jobs Fact.’ ILO Newsletter. Available at: http://www.un.or.id/documents_upload/newsletter/2011%2006_%28EN%29_ILO_Newsletter.pdf (accessed January 17, 2017).
[17] ILO. 2010. ‘Global jobs pact country scan of Indonesia.’ ILO Publication. Available at: http://www.ilo.org/wcmsp5/groups/public/---dgreports/---integration/documents/publication/wcms_151882.pdf (accessed January 20, 2017).
[18] Indonesian Constitution 1945. Indonesia.
[19] International Labour Organisation. 2009. Buku Panduan Kerjasama Pekerja – Managemen, ILO Jakarta Office.
[20] Muller, A. 2012. Labor Law Reforms at the Crossroads of ILO Standards and OECD and World Bank’s Indexes: A Global Review of Regulation on Collective Redundancies, Dialogue in Brief No. 3, International Labour Office.
[21] Selaban, R., Elly in Pratiwi, Ratih and Supriyanto, Agustinus. 2012. Non-standard work, social dialogue and collective bargaining in Indonesia, working paper no. 43, International Labor Office.
[22] Sugianto, F. 2013. Economic Approach to Law: Seri Analisis Ke-ekonomian tentang Hukum, Kencana Publication.
[23] Swedish Employment Protection Act 1982: 80. Sweden.
[24] Tempo. 2014. ‘Pecat Buruh: Gudang Garam Bantah Beralih ke Mesin.’ Tempo Magazine. Available at: http://www.tempo.co/read/news/2014/10/10/090613429/Pecat-Buruh-Gudang-Garam-Bantah-Beralih-ke-Mesin (accessed January 10, 2017).
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