GOVERNMENT REGULATION OF THE REPUBLIC OF INDONESIA NUMBER 22 OF 2022: SOLUTION TO THE DUALISM OF SUPERVISION OF MIGRANT FISHERY VESSEL CREWS?
In industrial relations, the supervisory mechanism is the most important element in maintaining harmonious industrial relations. Apart from that, it is also important in protecting employment rights from being violated. In the case of Migrant Fishing Ship Crews, employment rights or those agreed to in Maritime Work Agreements are the most vulnerable to being violated.
Supervision is important as a form of state presence in protecting citizens in the employment sector. If you read the Law of the Republic of Indonesia Number 23 of 1948 concerning Labor Inspection, supervision by the Department of Manpower is carried out to supervise the implementation of labor regulations, evaluate the implementation of labor inspections, and other work provided by other regulations. To achieve this goal, supervision from the government can be maximized if philosophically the government is superior to those being supervised (workers and companies/entrepreneurs), in the practice of deploying Indonesian workers, this has not been implemented. Furthermore, regarding labor inspection, it is regulated in Law Number 13 of 2003 concerning Employment, in its provisions confirming that Indonesian workers who work abroad are regulated in more specific regulations (Law of the Republic of Indonesia Number 13 of 2003 concerning Employment), in this case it is regulated in Law of the Republic of Indonesia Number 18 of 2017 concerning Protection of Indonesian Migrant Workers.
The process of protecting Indonesian Migrant Workers is defined as all efforts to protect Prospective Indonesian Migrant Workers and/or Indonesian Migrant Workers and their families in ensuring the fulfillment of their rights in all activities before work, during work and after work in legal, economic and social aspects (Article 1 paragraph (5) Law of the Republic of Indonesia No. 18 of 2017). This also includes the supervision process which is divided into processes before work, during work and after work, in contrast to domestic labor inspection which tends to supervise during work.Furthermore, the law on the protection of Indonesian migrant workers emphasizes that supervision is carried out by the regional government and the central government regarding the implementation of the placement and protection of Indonesian Migrant Workers (Article 76 of Law No. 18 of 2017), in this case the Ministry of Manpower and the Manpower Service in province, while supervision when workers work abroad is carried out by the Indonesian Labor Attache or representatives of the Republic of Indonesia (Article 21 paragraph (1) Law No. 18 of 2017). Then these supervision arrangements were delegated and then regulated in Government Regulation Number 59 of 2021 concerning the Implementation of Protection for Indonesian Migrant Workers. This Government Regulation regulates the supervision of Indonesian Migrant Workers which is divided into phases before work, during work and after work, this is regulated in accordance with the division of phases of the protection process for PMI. PMI’s special labor inspection arrangements in PP No. 59 of 2021 can be said to be quite good compared to the previous regulation, namely Law Number 39 of 2004 concerning the Placement and Protection of Indonesian Workers Abroad, but there are still several shortcomings.
Research conducted by Hot Simamora at the West Kalimantan Province Manpower and Transmigration Service, found that companies that distribute migrant workers have not been the main priority for labor inspectors in carrying out labor inspections, this is shown by data obtained from the UTP for Labor Inspection Region I, West Kalimantan Province In 2019, as many as 105 companies had undergone inspection and guidance efforts by labor inspectors, not a single company operating in the field of providing services for Indonesian Migrant Workers was inspected. Even though distribution companies are vulnerable to violating the employment rights of Indonesian Migrant Workers. Hot also explained that labor inspectors have limited authority to investigate/conduct inspections on employers who are outside the Indonesian labor law zone, making it difficult to follow up on complaints from Indonesian Migrant Workers.
Apart from the above, weak supervision of Indonesian Migrant Workers is also due to the supervisory policy which was changed through Law Number 23 of 2014 concerning Regional Government, where the role of labor inspection becomes limited centralized, namely that the supervisory authority of Regency/City Regional Governments is eliminated, so that Labor inspectors only exist at the Provincial Government level. This causes supervision to be carried out not optimally. Because the recruitment and placement and protection processes are mostly carried out at the Regency/City Government level. Apart from this, the number of labor inspectors is also still minimal, according to data from the Ministry of Manpower and the ILO, until the end of 2016 the number of Labor Inspectors was 1,923 people and Civil Servant Investigators were 383 people. This is also exacerbated by the large number of Indonesian Migrant Worker Placement Companies that are not licensed or whose operational permits have expired, so they often escape government supervision. Therefore, regarding PMI labor inspection, community participation is also regulated.
The dualism of supervision begins with the regulation of the placement of Indonesian Migrant Fishing Crew Crew abroad and has been confirmed by Law no. 39 of 2004 concerning the Placement and Protection of Workers Abroad, in Article 28 it is explained that “The placement of PMI in certain jobs and positions is further regulated by Ministerial Regulations”, then in the explanation it is emphasized “what is meant by certain jobs and positions includes work as seafarers” (Explanation of Law No. 39 of 2004 concerning the Placement and Protection of Workers Abroad). This article actually delegates the Minister of Manpower to issue regulations regarding Migrant Fishing Ship Crews, but the ministerial regulation in question has never been issued.
In the absence of regulation, the National Agency for the Placement and Protection of Indonesian Workers in 2013 issued Regulation of the Head of the Agency Number Per. 03/KA/I/2013 concerning Procedures for Placement and Protection of Indonesian Workers, Migrant Fishing Ship Crews on Foreign-Flag Ships and Head of Agency Regulation Number Per. 12/KA/IV/2013 concerning Procedures for Recruitment, Placement and Protection of Seafarers on Foreign Flag Ships. However, the National Agency for the Placement and Protection of Indonesian Workers overstepped its authority, so that the two regulations of the head of the Agency were not effective. The Ministry of Transportation issued Minister of Transportation Regulation Number 84 of 2013 concerning Recruitment and Placement of Ship Crews, this regulation regulates licensing of companies placing Migrant Fishing Ship Crews. Unfortunately, this regulation does not fully regulate the protection of migrant fishing boat crews, and also undermines the regulatory authority for employment matters which should be carried out by the Minister of Manpower.
In 2017 the government passed Law Number 18 of 2017 concerning the Protection of Indonesian Migrant Workers, Article 4 of which states that ship crews and fisheries sailors are part of PMI. The spirit and paradigm of Law no. 18/2017 in the process of placing and protecting PMI regulates the role of the state (Eddyono, 2020). Thus, protecting PMI in the marine sector also falls under the authority of regional governments and the central government. It is unfortunate that until the time limit (2 years) since Law no. 18/2017 was passed (see Article 90 of Law No. 18/2017). Government regulations regarding the placement and seafaring of ship crews and fisheries sailors as mandated by Article 64 of Law no. 18/2017 has not yet been realized. Article 64 protection confirms that: “Further provisions as intended in Article 4 paragraph (1) letter c are regulated in Government regulations”. With this Government Regulation not yet issued, the process of placing PMI in the marine sector is carried out by following the Regulation of the Minister of Transportation of the Republic of Indonesia Number 84 of 2013 and Law No. 18/2017.
Overcoming the dualism as referred to above, the government issued Republic of Indonesia Government Regulation Number 22 of 2022 concerning the Placement and Protection of Migrant Commercial Ship Crews and Ship Crews. It is hoped that this regulation can be a solution to the ineffective legal supervision of migrant ship crew. However, law must be able to provide a solution to legal uncertainty to move towards orderly and just conditions.
Writer : Fithriatus Shalihah ( Faculty of Law Ahmad Dahlan University)
