On 14th December 2017, The Indonesian Constitutional Court has ruled the provision of the Article 153 paragraph (1) point f of Law No. 13 of 2003 on Manpower (Manpower Law) as not legally binding because it violated the 1945 Constitution. The said article read as follows:
“The entrepreneur is prohibited from terminating the employment of a worker because of the following reasons……The worker is related by blood (birth) and or through marriage to another worker in the enterprise unless so required in the collective work agreement or the enterprise’s rules and regulations.”
According to the provision stated above, a company shall not terminate the employment of a worker due to the reason that the said worker is married to another worker. However, this provision provides flexibility to the company to terminate the employment with the said reason if the company’s regulation (collective work agreement or company regulation) stipulate so. Due to this provision, there was common practice in Indonesian companies to stipulate a requirement in the contract that employees are prohibited from marrying a colleague in the same company. In case such occurrence happens, one of the employees would have to leave their job at the company. This common practice encouraged by the assumption that having a married couple in one office could lead to a conflict of interest.
However, after the judicial review decision, which was filed by members of PT PLN’s labor union, that provision shall not be applicable anymore. This is due to the provision contrary to the 1945 Constitution, precisely Article 28I paragraph (4) read as follows:
“The protection, advancement, upholding and fulfillment of human rights are the responsibility of the state, especially the government.”
Therefore it is the responsibility of the government to protect, advance and uphold the constitutional rights, precisely the rights highlighted in this judicial review are:
1. Right to work and to earn a humane livelihood (Article 27 (2) Constitution)
2. Right to establish a family and to procreate based upon lawful marriage (Article 28 B (1) Constitution)
The said provisions above are in line with the rights stipulated by the Law No. 39 of 1999 on Human Rights (Article 28 D (2)) and also International Covenant on Economic, Social, and Cultural Rights (Article 6 (1)) which has been ratified by Indonesia.
In conclusion, the ruling by the Court will prohibit companies to stipulate a provision of marriage ban between employees under their internal regulations. Therefore, any companies internal regulations in Indonesia that stipulate so may have to revise their regulation. However, due to non retroactive principle of Court’s judicial review decision, this ruling cannot be applied to work termination executed due to marriage ban reason prior to the decision.