REGULATORY ANALYSIS ON THE PROTECTION OF INDONESIAN MIGRANT WORKERS

From: A.M Oktarina Counsellors at Law

Contributors: Pramudya Yudhatama, S.H., Khaifa Muna Noer Uh’Dina, S.H., Raysha Alfira, S.H.

Reviewer: Noverizky Tri Putra Pasaribu, S.H., L.L.M (Adv).

Background

Today, many Indonesian citizens (“WNI”) work abroad. This certainly raises new challenges, which unfortunately we often find, often Indonesian migrant workers who work abroad, get less good treatment from employers. Indonesian Migrant Workers are also found to be vulnerable victims who do not receive their rights in accordance with applicable regulations. One example that we can find is Indonesian Migrant Workers who work as crew members (“ABK”) on foreign-flagged ships, which do not receive their rights in accordance with the proper provisions, such as the security and safety of fishermen, a decent working environment, and also work contracts that are not well socialized. Thus giving rise to defects in the contract. One example is 19 crew members working in the Singapore Sea ‘tricked’ by the Employer (as the link attached). Therefore, to improve protection for ABK, Minister of Manpower Ida Fauziyah stated that the government is committed to fixing the issue of governance of placement and protection of Indonesian ABK (as the link attached). But what about the Indonesian Migrant Workers who have been and are running now? Are existing regulations and regulations sufficient to provide protection for Indonesian Migrant Workers, and how are they implemented and monitored? Let’s look deeper into the Protection for Indonesian Migrant Workers below.

Legal Basis

The Constitution of the Republic of Indonesia Year 1945 (“UUD 1945“).
Law No. 18 of 2017 concerning the Protection of Indonesian Migrant Workers (“Law No.18/2017“).
Law Number 6 of 2023 concerning the Stipulation of Government Regulations in Lieu of Law Number 2 of 2022 concerning Job Creation into Law (“Law No.6/2023“).
Presidential Regulation of the Republic of Indonesia Number 90 of 2019 concerning the Indonesian Migrant Workers Protection Agency (“Perpres No.90/2019“).
Regulation of the Minister of Transportation of the Republic of Indonesia Number PM 59 of 2021 concerning the Implementation of Business Service Related to Transportation in Waters (“PM No.59/2021“)
Government Regulation of the Republic of Indonesia Number 22 of 2022 concerning the Placement and Protection of Migrant Commercial Vessel Crews and Migrant Fishing Vessel Crews (“PP No.22/2022“).

We need to know in advance what is meant by the Protection of Indonesian Migrant Workers by definition refers to Article 1 point 5 of Law No.18/2017 which reads:

“Protection of Indonesian Migrant Workers is all efforts to protect the interests of prospective Indonesian Migrant Workers and/or Indonesian Migrant Workers and their families in realizing the guaranteed fulfillment of their rights in all activities before work, during work, and after work in legal, economic, and social aspects“.

As stated in Article 3 of Law No.18/2017 the Protection of Indonesian Migrant Workers aims to ensure the fulfillment and enforcement of human rights as citizens and Indonesian Migrant Workers, and ensure the legal, economic, and social protection of Indonesian Migrant Workers and their families.

Indonesian Migrant Workers certainly also get some protection provided during work as stipulated in Article 21 of Law No.18/2017 which reads:

(1) “Protection During Work as referred to in Article 7 point b includes:

data collection and registration by the Manpower Attaché or designated foreign service official;
monitoring and evaluation of the Employer, employment, and working conditions;
facilitation of the fulfillment of the rights of Indonesian Migrant Workers;
facilitation of settlement of labor cases;
provision of consular services;
assistance, mediation, advocacy, and provision of legal assistance in the form of facilitation of advocate services by the Central Government and/or Representatives of the Republic of Indonesia and guardianship in accordance with local laws;
coaching of Indonesian Migrant Workers; and
facilitation of repatriation.

(2) Protection of Indonesian Migrant Workers during work as referred to in paragraph (1) shall be carried out by not taking over the criminal and/or civil responsibility of Indonesian Migrant Workers and shall be carried out in accordance with the provisions of laws and regulations, laws of the destination country of placement, and international laws and customs“.

In contrast, the Protection of Migrant Workers who have completed their duties and no longer work has also been regulated in Article 24 of Law No. 18/2017 which reads:

(1) “Protection After Work as referred to in Article 7 point c includes:

facilitation of return to the area of origin;
settlement of unfulfilled rights of Indonesian Migrant Workers;
facilitation of the management of Indonesian Migrant Workers who are sick and deceased;
social rehabilitation and reintegration of Sosiai; and
empowerment of Indonesian Migrant Workers and their families.

(2) Protection after employment as referred to in paragraph (1) shall be carried out by the Central Government together with the Regional Government”.

Based on this, Indonesian Migrant Workers who will work abroad have requirements that must be met as stated in Article 5 of Law No.18/2017, namely being at least 18 (eighteen) years old, having competence, being physically and mentally healthy, registered and having a Social Security membership number, and having the required complete documents. Not only that, Indonesian Migrant Workers also have the obligation to obey laws and regulations, both domestically and in the destination country of placement, respect the customs or customs that apply in the destination country of placement, obey and carry out their work in accordance with the Work Agreement, and report the arrival, whereabouts, and return of Indonesian Migrant Workers to the Representative of the Republic of Indonesia in the destination country of placement. As stated in Article 6 paragraph 2 of Law No.18/2017.

Related to the implementation of the placement of Indonesian Migrant Workers abroad consists of Agencies, Indonesian Migrant Worker Placement Companies or companies that place Indonesian Migrant Workers for the benefit of their own companies. The placement of Indonesian Migrant Workers by the Agency is carried out on the basis of a written agreement between the government and the government of the country Employer of Indonesian Migrant Workers or Employers incorporated in the destination country of placement, as stated in Article 49 and Article 50 of Law No.18/2017. Meanwhile, companies that will become Indonesian Migrant Worker Placement Companies as intended must have permits that meet Business Permits and are issued by the Central Government. The permit cannot be redirected and transferred to other parties and must also meet the norms, standards, procedures, and criteria set by the Central Government, as stated in Article 51 Article 84 of the Migrant Workers Protection Cluster Law No.6/2023.

The same is true for Indonesian Migrant Workers working on Foreign-flagged Ships, which we can know based on Article 1 paragraph 11 of PP No.22/2022 by definition of Foreign-flagged Ships, namely:

“A Foreign-flagged Ship is a ship flagged other than the Indonesian flag and is not recorded in the Indonesian ship register“.

Which can also be referred to as a Foreign Ship based on the definition in Article 1 paragraph 29 PM No.59/2021 , namely:

“Foreign Ship is a Ship flagged other than the Indonesian flag and is not recorded in the Indonesian Ship list“.

Basically, Indonesian Migrant Workers who work on Foreign-Flagged Ships have the same duties and responsibilities as Indonesian Migrant Workers sent abroad, which means that Indonesian Migrant Workers also follow the Migrant Worker Placement regulations.

In this case, the Indonesian Migrant Workers Protection Agency (“BP2MI”) is the institution tasked with implementing service policies in the context of placement and protection of Indonesian Migrant Workers, by definition based on Article 1 paragraph 2 of Perpres No.90/2019, namely:

“The Indonesian Migrant Workers Protection Agency, hereinafter abbreviated as BP2MI is a non-ministerial government institution tasked with implementing policies in the service and protection of Indonesian Migrant Workers in an integrated manner“.

BP2MI is under and responsible to the President through the minister who organizes government affairs in the field of manpower. In carrying out its duties, BP2MI carries out several of their functions which have also been regulated in Article 5 paragraph 1 of Perpres No.90/2019, namely:

“implementation of policies in the field of placement and protection of Indonesian Migrant Workers;
implementation of services and protection of Indonesian migrant workers;
issuance and revocation of recruitment permits for Indonesian Migrant Workers;
provision of placement services;
supervision of the implementation of social security services;
fulfillment of the rights of Indonesian Migrant Workers;
implementation of document verification of Indonesian Migrant Workers;
implementation of placement of Indonesian Migrant Workers on the basis of a written agreement between the central government and the government of the country of employment of Indonesian Migrant Workers and/or employers incorporated in the destination country of placement;
proposing the revocation and extension of the license of the Indonesian Migrant Worker placement company to the minister who organizes government affairs in the field of labor for the Indonesian Migrant Worker placement company;
implementation of protection during work in coordination with the Representative of the Republic of Indonesia in the destination country of placement;
implementation of facilitation, rehabilitation, and reintegration of retired Indonesian Migrant Workers;
implementation of social and economic empowerment after Indonesian Migrant Workers and their families;
coordination of task implementation, coaching, and providing administrative support to all organizational units within BP2MI;
implementation of substantive support to all elements of the organization within BP2MI; and
internal supervision over the implementation of BP2MI duties”.

In addition to the functions referred to in paragraph (1), BP2MI also compiles and establishes laws and regulations regarding employment agreement standards, signing, and verification, placement fees for Indonesian Migrant Workers, as well as the required processes before work which have also been regulated in Article 5 paragraph 2 of Perpres No.90/2019.

In this regard, the International Labour Organization (“ILO“) certainly also participates in formulating international policies and programs to improve the employment and lives of workers, as well as compiling international labor standards to serve as guidelines for member States in making and implementing labor policies, especially in making labor laws and regulations (as the link attaches).

However, whether the regulations that have been regulated above also apply to migrant workers who do not have valid documents and / or can be called illegal migrant workers. Of course, with the status of illegal migrant workers, their rights and many families are not treated properly. For this reason, it is important to have regulations to protect illegal migrant workers abroad. Given that some provisions explicitly only recognize and provide legal protection for migrant workers registered with official agencies, which means that unregistered and/or illegal migrant workers cannot obtain legal protection.

Related to legal protection for migrant workers abroad has been regulated in several laws and regulations, such as in Article 33 of Law No.18/2017 which reads:

“The Central Government and Regional Governments provide legal protection to Indonesian Migrant Workers in accordance with the provisions of laws and regulations, the laws of the destination country of placement, as well as international laws and customs“.

And also as Article 30 paragraph 1 of the 1945 Constitution states that:

“Every citizen has the right and obligation to participate in the defense and security of the state“.

This explains in general that the government has an obligation to provide legal protection to migrant workers working abroad, even if the migrant workers are illegal, they are still Indonesian citizens, which of course is the responsibility for the state to protect its citizens.

Conclusion

In ensuring the fulfillment of the right to work and decent livelihood for Indonesian Migrant Workers, it has been carried out through regulations and various protection measures will also be realized by the Government of Indonesia. In this case, of course, the presence and role of the State is needed in order to provide a sense of security and comfort for Indonesian Migrant Workers, especially those who work abroad and also on foreign-flagged ships. And of course for Indonesian Migrant Workers who work should be more careful and also more careful related to foreign companies in the workplace and pay attention to the work agreement before signing. Of course, coordination is needed from relevant stakeholders to be able to monitor the opportunities for the rise of Illegal Migrant Workers, so that protection for Indonesian Migrant Workers can be maximized.

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