On December 30, 2022, President Joko Widodo issued Government Regulation in Lieu Law No. 2 of 2022 on Job Creation (Job Creation Perpu). Some of you might be confused since the Job Creation Perpu was issued after the controversial Omnibus Law Job Creation. The Constitutional Court stated the Job Creation law as conditionally unconstitutional and contrary to the Constitution.
The Court also noted that the Law has no legal binding as long as there is no correction within 2 years (November 25, 2023). Do you want to know more about Job Creation Perpu and its relationship with Job Creation Law? Find the answers below!
- What is the Job Creation Perpu?
- What does it mean by "compelling urgency" of the Job Creation Perpu?
- Does the Job Creation Perpu change the Job Creation Law?
- Is the Job Creation Law still valid after issuing the Job Creation Perpu?
- How do trade unions respond to the Job Creation Perpu?
What is the Job Creation Perpu?
The formation of Law in Indonesia is regulated in Lawmaking Law (UUP3). The Law regulates the stages of planning, drafting, discussing, ratifying or enacting, and promulgating a rule until it can be approved.
The Lawmaking law (UUP3) recognizes Government Regulations in Lieu of Laws (Perpu) as regulations stipulated by the President in matters of 'compelling urgency' (article 1 point 4 of Law No. 12 of 2011 concerning P3). A Perpu is a legal product that can be issued only by the President. The legislative only gives approval or rejection. It means without the legislative process in the legislative. The Perpu has been in force since the Government enacted it and received the authorization.
However, to avoid being blamed, UU P3 or the Lawmaking law requires a 'compelling urgency' until a Perpu is deemed legal to issue.
What does "compelling urgency" mean in the Job Creation Perpu?
The Constitutional Court Decision Number 12/PUU-VII/2009 contains three conditions to be called a "compelling urgency", namely:
- The urgent need for solving legal issues
- The required laws do not yet exist or are not sufficient
- The standard procedure, which takes longer, cannot overcome the legal vacuum.
In response to the 'compelling urgency' of the Job Creation Perpu, the Government stated a Perpu should be issued to anticipate global economic and geopolitical conditions. Besides, it is necessary to follow up on the decision of the Constitutional Court, which called the Job Creation Law conditionally unconstitutional.
Does the Job Creation Perpu change the Job Creation Law?
The regulations in the Job Creation Perpu and the Job Creation Law are mostly the same, including their background. However, some things have changed. Regarding the minimum wage, Perpu adds Article 88F contains, "In certain conditions, the Government may stipulate a formula for calculating a minimum wage that is different from the formula referred to in Article 88D paragraph (2)." There has never been such regulation in Indonesia's labor law history.
It means there are two important things to highlight. There is minimum public participation in the process of the regulation. Second, the Government can change even the most crucial labour regulations, including wages.
Is the Job Creation Law still valid after issuing the Job Creation Perpu?
Ya. Pada BAB XV Pasal 184 Perpu Cipta Kerja menyebut semua peraturan pelaksana dari UU Cipta Kerja masih berlaku selama tidak bertentangan dengan Perpu Cipta Kerja. Selain itu, UU P3 menegaskan bahwa hierarki Perpu berada dibawah UU, yang artinya kekuatan hukum UU lebih tinggi daripada Perpu. Dalam hal Perpu bertentangan dengan UU, maka yang berlaku adalah UU.
Yes. Chapter XV, Article 184 of the Job Creation Perpu, states that all implementing regulations of the Job Creation Law are valid as long as they do not conflict with the Job Creation Perpu. The Lawmaking law (UU P3) emphasizes that the Perpu hierarchy is below the Law. If Perpu conflicts with the Law, the Law shall apply
How do trade unions respond to the Job Creation Perpu?
Most trade unions show resistance. A wage of protests has occurred since the Job Creation Law was discussed and enacted. Likewise, the labor movement initiated the review of the Job Creation Law at the Constitutional Court. Thus, workers considered the decision a small win when declared conditionally unconstitutional.
Being declared conditionally unconstitutional, the Job Creation Law and its derivative regulations still apply. Some of them have become the legal basis for undermining working conditions. Trade unions expect the legislators will heed the mandate of the Constitutional Court to amend the Law and involve meaningful public participation. Yet, the Government answered workers' expectations by issuing Job Creation Perpu, whose discussion is closed and without public participation. It was seen from the discussion and approval process that it only took 47 days.
Most parties state that the Perpu violates the mandate of the Constitutional Court. The Court obliges the States to suspend all strategic policies. It also prohibited the State from issuing new implementing regulations regarding the Job Creation Law for 2 years.
These were the reasons the leaders of trade unions rejected the content and process of issuing the Job Creation Perpu and conducting a formal and material review of the Perpu.
Sources:
- Omnibus Law
- Omnibus Law - UU Cipta Kerja
- Undang-Undang Nomor 13 Tahun 2022 tentang Perubahan Kedua atas Undang-Undang Nomor 12 Tahun 2011 tentang Pembentukan Peraturan Perundang-undangan.
- Peraturan Pemerintah No. 36 Tahun 2021 tentang Pengupahan
Related information:
- https://pshk.or.id/blog-id/perbaikan-uu-cipta-kerja-setelah-revisi-uu-ppp/
- https://www.hukumonline.com/klinik/a/kapan-perpu-dibuat-oleh-presiden-dan-apa-syaratnya-lt5188b1b2dfbd2
- https://www.kompas.id/baca/opini/2023/03/09/nasib-perppu-cipta-kerja
- https://www.mkri.id/index.php?page=web.Berita&id=18925