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Thursday, November 8, 2018

10 Steps How to Divorce in Indonesia


Image result for divorce
Divorce is the end of a marriage. When both couples decide not to continue their marriage, they can ask the government to be separated. Ending a marriage is certainly not an easy thing. There are so many aspects to note.
1. Preparing documents related to marriage.
However, the most important is the readiness and steadiness of a person when deciding to divorce. There are so many couples prepare their own divorce. Although the process is a bit more complicated, but this is not impossible to do. Take yourself with enough knowledge and don’t be shy to ask. Here are how to divorce in Indonesia.
To conduct a ‘divorce process in court, it takes some documents as a condition, here are the documents you need to prepare:
  • Copy / photocopy of Identity Card of the husband and wife (KTP or passport for foreigners)
  • Copy of Family Card (KK/KSK)
  • Copy of Birth Certificate / Birth Certificate from children (if already have children).
  • Copy of Book of Marriage (for Muslims) or Marriage Act (for Christians (Catholics & Protestants), Hindus and Buddhists
  • Copies of other letters relating to reasons for divorce. If the reason for the divorce is because one of the parties is sentenced to 5 years imprisonment, then you need to complete with evidence of a court verdict stating that the spouse has been sentenced to 5 years or more for guilty of a crime. If in the process of divorce, one of the parties also want to dispute about the status of joint property (gono-gini) then it should also be equipped with:
  • Copy of Letter of Marriage Agreement (if at the time of marriage the husband and wife have made the marriage agreement)
  • Copies of proof of ownership of valuable goods such as: Land Certificate, BPKB car / motorcycle, Certificate of Deposit or Book Deposit Savings Money in bank etc.
  • A copy of the Debt Proof Letter which is a dependent husband and wife in the marriage
  1. Make chronological issues
The plaintiffs write down the chronology of his household problems on plain paper. This chronology contains the complete story of married couples who want to divorce, from the beginning of marriage to the cause of the dispute until finally decided to divorce. Stories must be made with truth and detail. This is to facilitate the plaintiff in preparing a suit later. Try to create a coherent and clear storyline, so the judge can also easily understand your reasons for suing for divorce.
  1. Create a divorce papers
In the divorce papers, there are generally three commonly issued points such as divorce status, childcare rights, and the right to obtain joint property. After the divorce lawsuit has been made, you should get 5 sheets photocopy of the file.
So in total you have six pieces of divorce papers that will be required when registering the divorce suit. The six files will be distributed to the parties concerned in court later. One file will be sent by the court to the husband (Defendant), three files for the judges, a file for the court clerks (the officer on duty to record the proceedings), and one remaining file becomes your hold.
  1. Find Information
Before you file for divorce, it is a good idea to seek information about the process of filing for divorce first so that you are sure what you are doing is right. To obtain information related to the filing of a divorce suit, you can go directly to the information desk of the local Court, or telephone, open the website, contact the nearest non-governmental organization.
  1. Registering a divorce in the competent court
Usually the registration of a lawsuit is made in the administration room by a court official who is tasked with accepting the lawsuit. The officer will assign the seal or validation to the six submitted files. By doing that way your lawsuit has been registered.
Once you are convinced to which Court you must come to file a lawsuit, come to the Court with a divorce papers in accordance with the attached format. If you use a Legal Counsel, you may request a Legal Counsel to make a Claim on your behalf.  If you are a blind, illiterate or non-literate person, then you can file an oral lawsuit in front of the Chief Justice.

  1. Prepare the registration fee of the lawsuit
Prepare the cost of registration lawsuit about IDR 500,000 – IDR 700,000. This registration fee would be differ in each court, but generally revolves around that number. On the same day after you submit the Claim Letter to the Clerk, the Registrar will assess the cost of the case as set forth in the Power of Attorney to Pay (SKUM).
  • You will be required to pay the License Fee of the Case at the bank appointed by the Court.
  • Save the payment mark (issued by the bank) and return the payment receipt to the Court, as it will be attached to the registration of the case.
  • If you can’t afford a court fee, then you can apply for Prodeo to the Chief Justice
  1. Preparing witnesses
After an official lawsuit is filed, the court will send a divorce papers along with a summons to attend the first trial to the husband. The first trial schedule usually falls within two to four weeks after the date of registration of the divorce suit. During the waiting for the trial, prepare at least two witnesses with these qualifications:
  • Witnesses consist of at least 2 persons
  • Witnesses may come from family, neighbors, friends or people who live in your home
  • Witness should know (hear and see) directly the events related to your divorce suit
  • Witness must be an adult (18 years old or married or married)
Witnesses should be presented for review by the Panel of Judges at the next session after the mediation process fails when the trial of evidence.
  1. After paying the court fee, you will get a case number. Within 1-2 days of registering the lawsuit, the President of the Court shall determine the Panel of Judges to hear the case. Chief Judge appointed, immediately set a trial day. On the basis of the determination of the day of the hearing (PHS), the bailiff summoned both parties to attend the hearing. You must receive a letter of at least 3 days before the date of the hearing.Waiting for the hearing
A court summons for you must be submitted at your residence. A court summons for the husband will be handed over to the husband at his residence. If you or your husband is not at home, then the bailiff will send the summons to the village head or your husband or husband.
  1. The trial
Here are what is going to happen in the trial
  • If both wife and husband are present on the first trial, the mediation will be conducted. If one party is not present then the hearing is adjourned for calling the absentee.
  • After mediation (if both parties are present), the trial followed by the reading of the Plaintiff’s lawsuit letter.
  • The Defendant’s reply of the Plaintiff’s claim letter (oral / written).
  • Reply, ie Answer from the Plaintiff on Defendant’s Response
  • Duplication, which is the Defendant’s reply to the Plaintiff’s reply
  • If the Defendant is never present, then 2-5 points are not implemented and directly at the stage of proof of the Plaintiff;
  • Contains the conclusions of the parties as a form attitude towards the case;
  • Decision Reading.
10. The divorce certificates
Here are the processes of getting certificates after the trial
  • Having been given a decision stating that the marriage has been
  • If one of the parties is not present at the time of reading, the verdict will be sent to the Defendant.
  • After 14 days from the Defendant receives the verdict, there is no appeal, then the verdict has permanent legal force (BHT)
  • If the verdict is BHT, then Deed of Divorce can be taken.
  • Especially for the husband, after the second BHT decision the parties will be recalled to carry out the pledge of talak (state of divorce)
  • If it is a pledge then the day can also be made divorce certificate.
Soon after you get the divorce certificates, you might be separated with your wife or husband. The divorced couple might not stay at the same home anymore. However their status of the parents could not be end. So, they have to take care their child well.
Those are the ways to divorce in Indonesia. The steps could be applied if you decide not to use help from lawyers or LBH in court. However, you can still consult with them about the divorce procedure. The role of legal consultants will also be helpful.

Ini Kasus-kasus Pidana yang Bisa Dimediasi di Indonesia

Ini Kasus-kasus Pidana yang Bisa Dimediasi di Indonesia

Hukum Online : Dalam alam pemikiran restorative, Russell E. Farbiarz (Russell E. Farbiarz, 2008:363) menyebut keadilan tak hanya digali dari sudut victim-centered, melainkan turut memperhatikan sudut pelaku agar mengakui dan bertanggungjawab atas kesalahannya kepada korban maupun masyarakat.

Siapa bilang kasus pidana tak bisa dimediasi? Buktinya, sekalipun tanpa adanya aturan yang konkrit soal mediasi penal di Indonesia, namun Hakim Tinggi Pengadilan Tinggi Tanjung Karang, Diah Sulastri Dewi, mengaku telah beberapa kali menyelesaikan kasus pidana melalui jalur mediasi, yakni dalam kasus pidana anak berhadapan dengan hukum.

Memang dalam UU No. 11 Tahun 2012tentang Sistem Peradilan Pidana Anak, diatur perihal kewajiban penyelesaian pidana melalui “musyawarah diversi”. Ketentuan itulah yang disebut Diah sebagai salah satu bentuk dari mediasi penal sekalipun term nya berbeda.

Bahkan, Pasal 7 ayat (1) UU a quo mewajibkan dilakukannya diversi pada tingkat penyidikan, penuntutan dan pemeriksaan perkara Anak di Pengadilan Negeri khusus untuk tindak pidana anak yang diancam dengan pidana penjara di bawah 7 (tujuh) tahun dan bukan merupakan pengulangan tindak pidana (residivis).


Ketentuan pidana anak ini, kata Diah, mengubah arah pendekatan pemidanaan yang sifatnya retributive justice (pembalasan) menjadi pendekatan restorative justice (pemulihan). “Ruh mediasi penal adalah restorative justice,” ujar Diah dalam the5th Asian Mediation Association Conference, Kamis, (25/10) lalu.

Dalam alam pemikiran restorative, Russell E. Farbiarz (Russell E. Farbiarz, 2008:363) menyebut keadilan tak hanya digali dari sudut victim-centered melainkan turut memperhatikan sudut pelaku agar mengakui dan bertanggungjawab atas kesalahannya kepada korban maupun masyarakat. Implementasinya, kata Diah, proses mediasi melibatkan pelaku, orang tua, korban dan pihak terkait lainnya untuk secara bersama-sama mencari penyelesaian yang adil dan ditengahi oleh mediator.

Hingga kini, berbagai Negara seperti Jepang, Thailand, negera-negara di Uni Eropa, Philipina dan Amerika Serikat (AS) juga telah mengembangkan konsep dan praktik mediasi penal yang diperkenalkan dengan berbagai istilah sepertivictim-offender mediation (VOM), traditional village or tribal moots, informal mediation, community panels, family conference dan lainnya. Amerika Utara bahkan sudah mengembangkan konsep mediasi penal ini sejak awal tahun 1970-an melalui model VOM di Kitchener, Ontario, Kanada.

Untuk aturan mediasi di Indonesia sendiri, kata Diah, mulai dari Peraturan Mahkamah Agung (Perma) No. 2 tahun 2003 yang diubah dengan Perma No. 1 Tahun 2008 hingga perubahan terbaru dalam Perma No. 1 Tahun 2016 tentang Prosedur Mediasi di pengadilan, memang tak satupun menyinggung soal mediasi penal. Justru mediasi dalam Perma-Perma a quo hanya menyangkut soal Mediasi Perdata. Jadi, Diah menyebut memang hanya UU Sistem Peradilan Pidana Anak yang menjadi dasar hukum dilakukannya mediasi penal di Indonesia.


Hanya saja, sekalipun UU 11/2012 itu mengatur soal mediasi penal, tetapi ketentuannya tak letterlijk disebutkan mediasi penal, melainkan musyawarah diversi. Konsep musyawarah diversi ini, disebut Diah berkembang dari konsep musyawarah dan mufakat yang sudah mengakar dalam penyelesaian konflik di daerah-daerah melalui hukum adat, kearifan lokal hingga pertimbangan hukum agama.

“Jadi konsep musyawarah dan mufakat yang merupakan warisan nenek moyang Indonesia itu sebetulnya tak ada bedanya dengan mediasi,” kata Diah.

Sebelum adanya UU Sistem Peradilan Pidana Anak, Dyah menyebut ada 7 ribu lebih anak dipenjarakan karena tersangkut kasus pidana menurut data yang dihimpunnya dari Direktorat Jenderal Pemasyarakatan. Pada 2015 lalu, dari 6 ribu keseluruhan kasus pidana yang masuk, sebanyak 3.734 kasus berhasil dilakukan melalui musyawarah diversi (mediasi penal).

Jumlah ini fluktuatif jika dibandingkan dengan tahun 2016 sebanyak 3.449 kasus dan 4.379 kasus pidana anak yang berhasil dimediasikan dari 9 ribu perkara pidana yang masuk di tahun 2017.

Dekan Fakultas Hukum Universitas Indonesia, Topo Santoso, mengatakan setiap anak yang berhadapan/terlibat dengan hukum memang mesti dilindungi karena seorang anak belum dianggap dewasa. Ketika anak terkena kasus hukum, Topo berpandangan mesti dipahami perbedaan perlakuannya dengan orang dewasa. Sebab, tindakan pidana yang dilakukan anak banyak faktor yang mempengaruhi.

Dengan begitu, lanjutnya, penyelesaian perkara pidana anak lebih mengutamakan pendekatan yang tidak merugikan perkembangan jiwa si anak. Di banyak negara, anak yang terlibat dengan hukum bukan dianggap sebagai penjahat, sehingga penyelesaiannya seringkali di luar sidang dengan diversi.

“Kalau harus disidangkan, sanksi yang dijatuhkan bukan hukuman pidana, tetapi berupa tindakan tertentu. Kalaupun harus dipidana, hukumannya harus dikurangi. Jadi, ada treatment bagi anak yang dibedakan dengan orang dewasa,” jelasnya.


Selain perkara pidana anak, Dyah menyebut perihal pidana kekerasan dalam rumah tangga sebagaimana diatur dalam UU No. 23 Tahun 2004 tentang Penghapusan Kekerasan dalam Rumah Tangga, diatur pada Pasal 51-53 bahwa tindak kekerasan fisik, psikis dan kekerasan seksual dikategorikan kedalam delik aduan. Sehingga untuk menjamin kebaikan dan keutuhan rumah tangga, penyelesaian pidana kekerasan dalam rumah tangga ini seringkali diselesaikan melalui mediasi.

Sebelumnya, seorang mediator pada Pusat Mediasi Nasional (PMN), Tri Harnowo menyebut sekalipun mediasi penal belum mendapatkan posisi dasar hukum yang kuat dan lebih menggantungkan pelaksanaannya pada praktek penegakan hukum tapi kenyataannya mediasi penal ini banyak diterapkan pada berbagai perkara pidana.

“Hanya terjadi dalam law in concreto,” kata Trinowo sebagaimana dilansir dalam artikel hukumonline berjudul Eksistensi Mediasi Penal dalam Penyelesaian Pelanggaran Pidana Kekayaan Intelektual.

Eksistensi mediasi penal ini, disebut Tri Harnowo menemukan momentum ketika Kepolisian Negara Republik Indonesia mengeluarkan Surat Kapolri No. Pol: B/3022/XII/2009/SDEOPS tanggal 14 Desember 2009 tentang Penanganan Kasus melalui Alternative Dispute Resolution (ADR) yang menekankan penyelesaian kasus pidana menggunakan ADR sepanjang disepakati oleh pihak-pihak yang berperkara.

Hanya saja, mengingat Surat Kapolri bersifat internal dan bukan aturan perundang-undangan yang mengikat umum, maka Trinowo mengakui bahwa hukum mediasi penal di Indonesia memang belum cukup kuat. Selain perkara pidana anak dan kekerasan dalam rumah tangga, Trinowo juga mencontohkan kasus pidana lain yang bisa ditempuh melalui jalur mediasi, yakni pemidanaan dalam kasus Hak Cipta seperti diatur dalam Pasal 95 ayat (4) UU No. 28 Tahun 2014 tentang Hak Cipta dan Pemidanaan dalam Paten seperti diatur dalam Pasal 154 UU No. 13 Tahun 2016 tentang Paten.

UU tentang Hak Cipta
UU tentang Paten
Pasal 95 ayat (4):
Selain pelanggaran Hak Cipta dan/atau Hak Terkait dalam bentuk Pembajakan, sepanjang para pihak yang bersengketa diketahui keberadaannya dan/atau berada di wilayah Negara Kesatuan Republik Indonesia harus menempuh terlebih dahulu penyelesaian sengketa melalui mediasi sebelum melakukan tuntutan pidana.
Pasal 154:
Dalam hal terjadi tuntutan pidana terhadap pelanggaran Paten atau Paten sederhana para pihak harusterlebih dahulu menyelesaikan melalui jalurmediasi.

Wednesday, September 19, 2018

Divorce and Marital Dissolutions in Indonesia


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In Indonesia, divorce and marital dissolution have been governed by the 1974 Marriage Act and its implementation rules.
A divorce petition must be filed at the local district court for Non-Moslems, and local Religious Court for Moslems. There are certain marital dissolution reasons according to 1974 Marriage Law and Islamic Law, they are:

Marriage Law of 1974

Pursuant to Marriage Law, a marriage may be terminated due to several reasons as follows:
  1. Death of either party
  2. Divorce
  3. Upon court's decision

Death

The death to either party will automatically terminate the marriage.

Divorce

One of the means to dissolve a marriage is by divorce. Divorce may only be executed before a court session, before the district court for Non-Moslems and before the religious court for Moslems. Therefore, either one of the parties wanting to divorce needs to file a divorce petition to the court.
The legal grounds of filing for divorce have been regulated in the Marriage Law, which are, in the event one of the parties:
  1. has committed adultery, is an alcoholic, is addicted to drugs, is a gambler or exhibits other vices which are difficult to cure;
  2. has left the other spouse for two consecutive years, without consent and without legitimate reasons or the absence of reasons beyond his control;
  3. has been sentenced to imprisonment for five (5) consecutive years or a longer period;
  4. has resorted to cruelty or severe ill treatment, endangering the life of the other spouse;
  5. has developed a disability or disease, preventing from fulfilling the duties of husband or wife; or
  6. has irreconcilable differences.

Upon Court's Decision: Annulment

Marriage annulment means that any marriage may be cancelled if both parties cannot fulfill the conditions for the marriage. A marriage annulment can only be decided by a court of law.
Families in a straight line of descent and above the husband or wife (For example: father, mother, grandfather etc of husband or wife.) , an authorized/appointed official, and anyone directly possessing legal interest in the marriage may file a request for marriage annulment.
Any request for marriage annulment may be submitted to a court within the jurisdiction where the marriage was conducted or within the jurisdiction of the residence of the married couple (in accordance with Article 38 (1) Government Regulation No. 9 Year 1975 regarding the Implementing Rules of 1974 Marriage Law) the husband, or the wife. A marriage annulment may be filed for the following reasons:
  1. the marriage guardian (wali) is illegal; or
  2. the marriage was not attended by two witnesses.
  3. The marriage was performed in front of unauthorized marriage registrar.
The right to annul a marriage by a husband or wife based on such reasons becomes null and void if they live together as a married couple and can show the marriage certificate issued by the unauthorized officer of the marriage registry. In this instance the marriage has to be conducted again in order to make it legal.
The husband or wife may request an annulment of their marriage, if the marriage was conducted before an unauthorized officer of a marriage registry, or if the marriage was conducted under a threat that violates the law, or if there is a misunderstanding between the husband and wife.
His/her right will be null and void if the threat has stopped or if the misunderstood party? realizes the situation, but doesn't use his/her right to request for marriage annulment within six (6) months after living together as married couple. Example of a “misunderstood condition” would be if the husband thought the wife was a virgin, but in fact she was not – so I misunderstood about her personal conditions.
Annulment of a marriage commences upon the court decision and is permanent and legal binding and applies as of the time of marriage was conducted. However, such a decision is not retroactively effective to:
  1. children born from the marriage;
  2. husband or wife acting with good intention, except against joint property, if the annulment is based on a previous marriage. The annulment decision is retroactively effective to the joint property of the parties in the event the marriage was entered and one of the couples was not legally free to marry.
  3. a third party, so long as he/she has the rights based on good faith.

Islamic Law
In Islam, a marriage may be terminated due to several reasons, namely:
  1. Death of either party
  2. Thalak
  3. Judge's Decision
  4. Khulu
  5. Li'an
  6. Ila'
  7. Murtad (apostate)
When a husband or wife passes away, their marriage is automatically terminated. When a wife passes away, her husband doesn't have any legal difficulties in marrying another woman, but can remarry immediately. But, when a husband passes away, his wife has to wait for four (4) months and 10 days before she can marry another man.
Literally, thalak means to release (abandon). Thalak or divorce is the right given to a man and is an action of releasing a woman from the marriage. In Islam, this method of divorce has been stipulated, but it is accompanied by the explanation from the Prophet Mohammad that God doesn't like divorce.
Divorce through a judge's decision may be due to several reasons, such as, among others, that the husband is unable to provide the basic necessities of life, the husband commits torture against his wife, the husband vanishes (being far away from or not being near his wife), or that the husband is serving a term in prison.
Fasakh is the cancellation of marriage agreement (akad) and the termination of a marriage between a husband and wife due to damage taking place in the marriage agreement (akad) or due to sudden reasons that may hamper the continuation of the marriage agreement (akad). For instance, it could be due to a problem in the family relationships. Fasakh will cause the marriage agreement (akad) to be annulled.
Khulu' is a divorce given by a husband to his wife with payment to the wife. Khulu's is required by Islam for balancing the thalak right for a husband when there is a hatred that cannot be settled peacefully.
A marriage may be terminated due to li'an, because the person making the li'an in the fith oath says that God's curse is upon him/herself if he/she is a liar. As a result of li'an, the marriage is terminated forever. If the accusing husband denies the birth of a child by saying that the child is not his, the child is not the offspring of this husband any longer, but legally becomes an illegitimate child and becomes the child of accused wife. The child cannot inherit from his/her father (the accusing husband). If the child is female, her guardian is a judge of justice, if the child will marry someone else.
Murtad (apostate) is when a Moslem abandons Islam. If a husband or wife is judged apostate, their marriage is terminated due to their action.
Marriage dissolution based on the grounds of thalakli’an, and khuluk’ shall only valid in the event they are conducted at the religious court.

Annulment according to Compilation of Islamic Law

Compilation of Islamic Law which is enacted under Presidential Instruction Number 1 of 1991 also governs marriage annulment under several reasons:
  1. Polygamy conducted by husband without the permission from the Religious Court;
  2. The bride is not legally free to marry and still in a marriage with other man;
  3. The bride in the period of ‘iddah of her previous husband, Iddah means a waiting period where a woman is not allowed to marry other man. The period may vary according to the reason of her previous marriage dissolution i.e. 130 days due to death, and 90 days due to divorce;
  4. The marriage is not comply with the minimum of age requirement as governed by the 1974 Marriage Law;
  5. Married performed without wali nikah (marriage guardian) or performed with unauthorized one;
  6. Marriage performed under threat
 Marriage annulment is also known as fasakh is the cancellation of marriage agreement (akad) and the termination of a marriage between a husband and wife due to defect taking place in the marriage agreement (akad) or due to sudden reasons that may hamper the continuation of the marriage agreement (akad). For instance, it could be due to a problem in the family relationships. Fasakh  will cause the marriage agreement (akad) to be annulled.
Annulment petition can be filed at the local religious court having jurisdiction over the residence of husband or wife or may be submitted to the local religious court within the jurisdiction where the marriage was conducted. Court decree on marriage annulment shall take effect retroactively since the date of marriage took place.
Authorized parties to file for annulment petition are:
  • Family in a upper and lower straight line such as parents, and siblings;
  • Husband or wife;
  • Authorized officers responsible in supervising the performance of marriage as governed by law;
  • Other parties who aware of any marriage defect in terms of marriage requirements as imposed by the prevailing law.

Tuesday, September 18, 2018

Employment Dismissal Procedures


Dismissal Procedures

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I.  Dismissal
The principle of National Labor Regulations on workers dismissal is that it should be prevented or in some conditions, prohibited. Nonetheless, if it is inevitable, the relevant authorities must approve every termination of employment. Exceptions to approval for termination noted in Labor Law No. 13 / 2013 are the following:

Workers are on probation
Worker submitted a resignation request in writing based on their free will.
Workers have reached retirement age
Workers passed away

Workers face criminal proceedings for more than six months and cannot perform their work, or are found guilty by the court before the end of the six-month period

According to Labor Law No. 13/2013, workers dismissal is prohibited if the reason for dismissal relates to the following:

Workers activities in a labour union.
Workers report any illegal action conducted by the employer to the authorities.
Workers ideology, religion, race, gender, physical condition, marital status, etc.
Workers are being ill continuously for less than 1 year as stated in a physician’s certificate.

Workers become permanently disabled or sick for work-related reasons and the healing period is unpredictable.
Workers are being on State duty.
Workers are required to carry out religious duties as approved by the authorities.
Reasons of marriage, pregnancy, birth or miscarriage for female workers.

The Labor Law No. 13 of 2013 stipulates permissible causes for termination. These include “regular” reasons such as breach by an employee of his or her employment contract, company regulation or collective labor agreement, upon due warning and “serious” reasons including theft, providing false information to the employer, dangerous or immoral conduct or similar behaviors. National Labor Regulations previously expressly permitted termination for such “serious” reasons without a court order or automatic dismissal. However, by the provision of the Constitutional Court (Mahkamah Konstitusi) No. 012/PUU-I/2003, termination based on “serious” reasons requires approval of the Industrial Relations Court (PHI); thus, workers who were alleged conducting serious offense could not be automatically dismiss
The Manpower Law also recognizes certain economic imperatives as well. An employer is entitled to dismiss an individual employee in the event of bankruptcy, or upon a change of status, merger, or consolidation of the employer.

A similar entitlement to terminate exists under Article 164(3) of the Labor Law No. 13 of 2003, where a company is closed down for reasons of efficiency (i.e., without two consecutive years of financial losses) or due to two consecutive years of financial losses or force majeure. The Article goes on to stipulate higher termination benefits for termination for reasons of efficiency without such financial losses.

From the date of Labor Law No. 13/2003 issuance until 2012, Article 164(3) has been used to justify downsizing a part of the workforce for reasons of efficiency, whereas the Article actually expressly contemplates the closing of the company as the triggering event. There is no other provision of the Labor Law that expressly permits downsizing the workforce for reasons of efficiency. However, based on the Constitution Court decision on 20 June 2012 (Case No. 19/PUU-IX/2011), the inclusion of the word “efficiency” in Article 164(3) cannot, in and of itself, be interpreted as the basis or right for a company to terminate an employee in Indonesia. The desire of an employer to make labor costs more efficient through the reduction of the workforce is not a proper legal basis for termination in Indonesia.

The Constitutional Court decision also addressed the meaning of Article 164(3) directly. In a move to remove any uncertainty or ambiguity in the Article, the Court stated that the provisions could only be invoked where the company in question needed, in fact, to be permanently closed down. Temporary or threatened closure was not sufficient to allow an employer the termination rights specified in the Article. In the view of the Court, any contrary interpretation would be inconsistent with the Constitution.

Under Article 156 of Labor Law No. 13 of 2003, termination of the employment relationship gives rise to termination payments that include severance pay and /or long service pay, as well as compensation pay for entitlements required under a collective agreement.

The extent of the termination package depends on the circumstances of termination. In the event of a termination on the grounds of grave wrongdoings or absence for five consecutive workdays without explanation, the worker is not entitled to any severance pay or long service pay. However, if a termination conducted on the grounds of violation of the terms of employment, the worker is entitled to severance pay and rewards.

Components of Termination Payment under Labor Law No. 13 / 2003
1. Severance Pay (Article 156.2)
1 month salary for a service period of less than 1 year;
2 months salary for a service period of 1 year but less than 2 years;
3 months salary for a service period of 2 years but less than 3 years;
4 months salary for a service period of 3 years but less than 4 years;
5 months salary for a service period of 4 years but less than 5 years;
6 months salary for a service period of 5 years but less than 6 years;
7 months salary for a service period of 6 years but less than 7 years;
8 months salary for a service period of 7 years but less than 8 years;
9 months salary for a service period of 8 years or more ;


2. Long Service Pay (Article 156.3)
2 months salary for a service period of 3 years or more, but less than 6 years;
3 months salary for a service period of 6 years but less than 9 years;
4 months salary for a service period of 9 years but less than 12 years;
5 months salary for a service period of 12 years but less than 15 years;
6 months salary for a service period of 15 years but less than 18 years;
7 months salary for a service period of 18 years but less than 21 years;
8 months salary for a service period of 21 years but less than 24 years;
10 months’ salary for a service period of 24 years or more.


3. Compensation of Rights (Article 156.4)
Compensation for annual leave to which the employee is entitled, but which is not taken by the employee;
Compensation for travel expenses or costs for the employee and his/her family to return to the original location of hire;
If the plan to terminate an employee is disputed, the termination process may take up to 140 working days to complete, from bipartite negotiations through to a Supreme Court decision (i.e., if the Industrial Relations Court decision is appealed). Under Article 155, during the termination process, the employer is still required to pay salary and other benefits to employee. However, under Article 93, if the worker stops working, the employer is not required to continue paying. Prior to terminating employment, there are several steps to be taken.
Bipartite Negotiations

This is the first step that should be taken prior to employment termination. Employer and workers (or if applicable the union representative) should meet and negotiate to reach an amicable termination settlement. The bipartite negotiation process must be settled at the latest within 30 calendar days after negotiations start.

Anything agreed or disagreed in the negotiations should be recorded in detail in Minutes of Meeting signed by both parties. The Local Manpower office can provides a sample of Minutes of Meeting.

If a settlement is reached, a Collective Agreement (Kesepakatan Bersama) is established and signed. The Collective Agreement must be drawn up, signed by the parties, and witnessed by the mediator. The Collective Agreement, together with relevant evidence, must be registered by both parties to the Industrial Relations Court (PHI).

If no consensus is reached in the negotiations, one or both parties must submit a dispute letter together with the relevant evidence to the Local Labour Office.

Conciliation

Should bipartite negotiations fail to reach a mutual agreement and employement termination is inevitable, both parties will be offered by the Local Labour Office to settle the dispute through Conciliation. If the parties refuse to settle the dispute through Conciliation, the Local Manpower Office will transfer the dispute to a mediator (mediation process).

The parties must submit a written application to the conciliator whom they have agreed to from the list of conciliators published in the Local Manpower Office. Within seven working days after the application is submitted, the conciliator must review the dispute. At the lastest on the eighth working day, the conciliator must hold the first conciliation session. This conciliation process should take place within 30 days after receipt of the application.

The conciliator then will issue a recommendation to settle the dispute to both parties. If both parties agree to the recommendation, within 3 days the conciliator must assist the parties to prepare a collective agreement, which should be registered to the Industrial Relations Court (PHI).

If one of the parties does not accept the recommendation, a lawsuit to the Industrial Relations Court (PHI) can be filed.

  
Mediation

If bipartite negotiations fail to reach an agreement and the parties refused to settle through a conciliation process, the relevant Local Manpower Office officials will transfer the dispute to mediation.
Within 7 days after a request for mediation is received, the intermediary officer from the Local Manpower Office should review the case and immediately commence a mediation process which should be completed within 30 days.

The mediator will issue a recommendation to both parties. If both parties agree, within 3 days the mediator must assist the parties to prepare a collective agreement, which should be registered to the Industrial Relations Court (PHI).

If one of the parties does not accept the recommendation, a lawsuit to the Industrial Relations Court (PHI) can be filed.

Industrial Relations Courts (PHI)

A lawsuit filed to the Industrial Relations Court (PHI) must be supplemented with the minutes of mediation or conciliation process. The plaintiff may revoke the lawsuit at any time before the defendant gives a response. At the latest within seven working days, the Chairman of the Industrial Relations Court (PHI) should select a panel of judges, consisting of one chairperson and two members. The decision of the Industrial Relations Court (PHI) can be appealed to the Supreme Court at the latest 14 working days after the court decision is notified to the parties.

The decision of the Industrial Relations Court (PHI) is binding if there is no written request of appeal submitted by any of the parties within 14 days.


II.  Resignation

Under the Labor Law No. 13/2003 there are two types of resignations. The first one type is voluntary resignation as stipulates on Article 162 of Labor Law No. 13/2003. Workers who want to resign from a company should submit a resignation letter 30 days prior the last day of employment. The second type is qualified as resign. Article 168 of Labor Law No. 13/2003 stipulated that when workers absent from work without specific written reason for five consecutive days, a company can qualifies that workers in question are resigned. For the second type of resignation, a company should properly summon the workers in writing to come back to work before qualifies workers are resigning.

Labor Law No. 13/2003 does not specifically stipulate “qualify as resign” required a decision of the Industrial Relations Court (PHI). Nonetheless, there is other legal opinion stating that although absent for five consecutive days without written reason is qualified as resign, the word qualify implies that it is not a voluntary resignation. In addition the Labor Law No. 13/2003 on Article 168 verse (3) also implying that qualifies as resign as dismissal of employment. This legal opinion then states that a decision may not be needed; however, a registration of dismissal of employment agreement between a company and worker who qualified as resign should be submitted to the Industrial Relations Court (PHI), similar as collective employment dismissal agreement.
Workers who voluntarily resign or qualify as resign are entitled for compensation pay as stipulated on Article 156 verse (2) and separation or detachment money. The compensation pay that the dismissed worker shall includes

a. Annual leaves that have not expired and not have taken.
b. Costs or expenses for transporting the worker and his or her family back to the point of hire.
c. Compensation for housing allowance, medical and health care allowance is determined at 15% (fifteen percent) of the severance pay and or reward for years of service pay for those who are eligible.
d. Other compensations that are stipulated under the work agreement, company regulations or collective bargaining agreements.

In 2005, the Ministry of Manpower issued a Circulation Letter No. 600/2005 which states that workers who resigned do not get severance payment and reward for years of service pay (as Labor Law No. 13/2003 stipulates only dismissed or terminated workers the payment in question); thus, workers will not get replacement housing and care as well as treatment provision (amount of 15%) in Article 156 verse (4) point c. The Circulation Letter has not yet revoked. As Circular Letter is not part of Indonesia legal hierarchy, but it is adhered and imposed by Local Manpower officials, any issue on the different interpretations of the Circular Letter No. 600/2005 should be resolved by the Industrial Relations Court (PHI)