13 Desember 2010

» Home » Opini » The Jakarta Post » Law revision is key to protecting workers

Law revision is key to protecting workers

Does the state sufficiently protect migrant workers? To answer this, one should refer to the Law on the Placement and Protection of Indonesian Migrant Workers.
To begin with, the spirit of the law is purely commercial and designed to promote sending as many workers overseas as possible. Its focus on protection is far from adequate. Out of the law’s 109 articles, only eight deal with protection.
The law shows inconsistency in addressing migrant worker rights.  Articles 7(a) and 8(b) stipulate that the state guarantees rights, including the right for correct and reliable information about the overseas labor market and placement procedures. But then it simply hands over information provision to private recruitment agencies.
No one would be surprised if the latter did not pass on correct information and other important facts that might go against their vested interests. For example, recruitment agencies might not inform workers about their rights in industrial relations fearing that this would spoil their reputation in supplying obedient workers.
Or the agencies might not reveal true information about working conditions that might make prospective workers lose interest. The issue then is who will guarantee that these profit-oriented entities convey accurate information? If they violate the rules, what will the sanctions be?
Article 7(e) of the law maintains that the state must provide protection to migrant workers prior to, during and after employment. Article 82, however, stipulates that private recruitment agencies are responsible for protecting migrant workers according to placement contracts. Aside from this inconsistency, how can we ensure that the agencies are doing what the law mandates and what are the sanctions if they do not?
The law is unclear about how to protect workers from extortion and exploitation. Although article 39 instructs the private recruitment agencies to bear all costs except as otherwise stated, article 76 (1) and (2) allow private recruitment agencies to pass on to workers the costs of processing identity documents, health and psychological tests, job training and professional certificates and others items as further specified by the government.
Further, article 43 of a Manpower and Transmigration Ministry regulation says that other chargeable costs, such as visas, food and accommodation during training, airfare and airport taxes, local transportation, insurance and, last but not least, agency service fees be paid for by employees.
According to article 76 (3), these costs must be transparent.  However who will assure that these commercial organizations do not overcharging workers.
Supervision is crucial for legal enforcement. The law is ambiguous in the matter. On the one hand, article 92 (1) denotes that government agencies, including those at the provincial and district levels, are responsible for supervision. On the other hand, article 95 (2) says that supervision is the task of BNP2TKI (National Board for the Placement and Protection of Indonesian Overseas Workers). The relationship between BNP2TKI and local governments remains blurred.
More seriously, six years after the law came into effect, both the supervision mechanism (article 92 [3]) and the reporting mechanism of supervision (article 93 [2]) have still not been implemented by government or ministerial regulation. Without such regulation, supervision will be very difficult.
In regard to disputes between workers and agencies, the law suggests that both parties seek common ground informally and peacefully (article 85 [1]). Court solutions are only a last resort if parties fail to meet half way (article 85 [2]). At the same time, the stipulated punishment of offenses is lenient. Article 100 of the law imposes only administrative sanctions on errant agencies, ranging from issuing written warnings to revoking business licenses. The law is weak not only in terms of prevention but also in terms of enforcement.
The state exists to ensure protection of workers’ human rights. However, the state, at the very least, cannot even protect the workers’ consumer rights. The migrants are the clients of the agencies. They are also the clients of insurance companies. Each of them pay a premium of Rp 400.000 (US$44.40) under article 68 of the law and article 12 of the ministerial regulation.
In addition, the state levies a charge of $15 on each worker under the so-called Assistance and Protection Program. This is exactly in line with the law’s general idea: Protection should come from the migrants themselves.
It is high time to consider the adoption of international standards for effective protection and good emigration governance. Indonesia has ratified eight ILO Core Conventions in relation to workers’ rights and has signed the UN Convention on Protection of Migrant Workers and Their Families. Indonesian law must be revised to comply with these conventions. Consequently, it has to acknowledge the gender dimension in overseas employment. It also has to recognize the presence of irregular migrants — the unregistered ones and those without legal documents — and to make sure the fulfillment of their basic human rights.
The revised law needs to ensure that the recruitment process occurs in a professional, transparent, and accountable manner. It should envisage effective mechanism for monitoring and supervision of the private recruitment agencies as well as the migrant workers.
Legal revision is necessary condition, but it is not sufficient. It has to be followed with the drafting of a domestic workers law and finally the ratification of the UN Convention on Migrant Workers and Their Families.
Legislators have promised to revise the law by the end of this year. With less than one month to go, no one knows exactly what the progress is. Does this mean that legal protection is the last concern of the state?

Legal revision is necessary, but not sufficient. It has to be followed with the drafting of a domestic workers law and ratification of the UN Convention

Palmira Bachtiar, The writer is a researcher at the SMERU Research Institute and is working on a study funded by the International Development Research Center on international migration and decentralization. The opinions expressed here are the writer’s.
Opini The Jakarta Post 13 Desember 2010