Lawsuit Of Ciptaker, MK Affirms Mandatory Workers Prioritize Indonesian Workers

The atmosphere of the trial for the pronouncement of Case Decision Number 168/PUU-XXI/2023 in the Plenary Court Room of the Constitutional Court, Jakarta, Thursday (31/10/2024). (ANTARA/Fath Putra Mulya)

JAKARTA - The Constitutional Court (MK) emphasized that every employer is obliged to prioritize the use of Indonesian workers rather than foreign workers (TKA) in all available types of positions.

This affirmation was conveyed by the Constitutional Court in the legal consideration of Case Number 168/PUU-XXI/2023, namely related to the judicial review of Law Number 6 of 2023 concerning Job Creation (UU Ciptaker).

"In the event that the position cannot be occupied by Indonesian workers, the position can be occupied by foreign workers. However, the use of foreign workers is carried out by taking into account the condition of the domestic work market," Constitutional Justice Arief Hidayat said in a hearing for the pronouncement of the verdict in the Plenary Court Session Room, Jakarta, Thursday, October 31, which was confiscated by Antara.

The Constitutional Court also emphasized that employers are required to appoint Indonesian workers as TKA assistants. This is done so that technology transfer and expertise can occur from foreign workers employed to assistant workers.

"So that the assistants can have the ability to replace the accompanying foreign workers," added Arief.

The Constitutional Court understands that providing opportunities for foreign workers in Indonesia is unavoidable. Especially, in sectors that require special expertise that cannot be done by Indonesian workers.

However, the Constitutional Court emphasized that the use of foreign workers must be based on clear and measurable needs, and should not harm the job opportunities for Indonesian workers. Moreover, the 1945 Constitution of the Republic of Indonesia has emphasized that the state is responsible for providing access to fair job opportunities for citizens.

Furthermore, the Constitutional Court said, in the formulation of the norms of Article 42 paragraph (4) in Article 81 number 4 of Law Number 6 of 2023, there were actually three criteria for employing foreign workers, namely for certain positions, certain times, and having competencies in accordance with the positions to be occupied.

However, Article 81 number 4 of Law Number 6 of 2023 does not provide an explanation of these three criteria. This article only leaves further arrangements to government regulations.

According to the Constitutional Court, this condition has the potential to lead to multiple interpretations, so that it contradicts the principle of guaranteeing the right to work and a decent living for humanity, in this case, guarantees for Indonesian workers.

Therefore, in order to avoid irregularities in its application, the Constitutional Court stated that Article 42 paragraph (4) in Article 81 number 4 of Law Number 6 of 2023 contradicts the 1945 Constitution of the Republic of Indonesia as long as it is not interpreted:

Foreign workers can be employed in Indonesia only in employment relationships for certain positions and certain times and have competences in accordance with the positions that will be occupied, by paying attention to prioritizing the use of Indonesian workers.

"Based on the description of the legal considerations above, the arguments of the petitioners regarding the constitutionality of the norms of Article 42 paragraph (4) in Article 81 number 4 of Law Number 6 of 2023 are reasoned according to the law in part," Arief added.

Case Number 168/PUU-XXI/2023 was submitted by the Labor Party, Federation of Indonesian Metal Workers Unions (FSPMI), Confederation of All Indonesian Trade Unions (KSPSI), Confederation of Indonesian Trade Unions (KPBI), and Confederation of Indonesian Trade Unions (KSPI).

The petitioners in this case submitted 71 petitum points which the Constitutional Court grouped into seven arguments clusters, namely arguments regarding the use of Foreign Workers (TKA), Specific Time Work Agreements (PKWT), outsourced workers, leave, wages and minimum wages, termination of employment (PHK), severance pay (UPP), wage rights replacement money (UPH), and service award money (UPMK).