If you listen to Article 1 Number 23 and Article 137 of the Manpower Law, it is very clear that a strike is a basic right of workers (right to strike) .
In the world of labor, there are many terms that may be foreign to the public ear. One of them is a strike.
There are many definitions of strike. The Big Indonesian Dictionary notes, a strike can be defined as: “Strike by stopping activities, work because of demands that are not fulfilled by the company or place of work.”
In simple terms, a strike is an action taken by workers collectively and organized to stop the process of production activities. Strikes are the weapons of the workers to protest. Strikes become a balancing tool so that the workers have the same power when dealing with the power of entrepreneurs as owners of the means of production.
History records that strikes began to be used as a tool of the working class struggle since the Industrial Revolution era, where workers became an important factor in the activities of the manufacturing and mining industries.
However, at the beginning of the Industrial Revolution era, strikes were still seen as a criminal act and an evil conspiracy so that they could be threatened with criminal provisions. Moreover, because it is considered to have a detrimental impact, not only on the owners of capital but also on the wider community, a strike can be subject to criminal as well as civil threats.
Even in Chicago, America in 1886, regarding the case of the Haymarket strike which is now remembered by the workers as “May Day,” history recorded a brutal repression that led to riots. After the strike which demanded “eight hours a day”, it is still recorded that its labor leaders were sentenced to death.
Commemoration of International Labor Day in the Jalan MH Thamrin area, Jakarta, Wednesday (1/5/2019). Photo source: Antara Foto
It was in commemoration of the Haymarket martyrs that at the Second International Congress in Paris 1889, May 1 was designated a labor holiday. The red flag is used as a symbol to commemorate the struggle of the working class who was martyred when fighting for their rights.
It’s all worth it. Throughout the late 19th century to the early half of the 20th century, history also noted, the concept of a strike which was seen as a criminal act and was threatened with criminal provisions began to be abandoned. The majority of Western countries have started to legalize strikes.
England, for example, the birthplace of the Industrial Revolution, was the first country to abandon the concept of a strike as a criminal act. The passage of the Trade Union Act in 1871 marked a new phase, in which trade unions had the freedom to strike . Trade unions also have immunity from the law ( immunity ) when coordinating strikes, including claims for compensation. Even so, a strike has not yet been placed as a right ( right to strike ).
Likewise in the Netherlands in 1872, the criminal nature of strikes was abolished. Since then, there have been no special provisions regulating and prohibiting strikes. Labor dispute cases are settled in court.
Germany was no exception in the era of the Weimar Republic, 1918 – 1933. It was Hugo Sinzheimer, a legal expert, who introduced the existence of a collective labor contract agreement between workers and owners of capital, and pushed for the legalization process under the law.
It was from this figure that the concept of a work council emerged in Germany and then spread to many countries in Europe in the 20th century. Insurance or social security has also developed in Germany since the late 19th century and spread throughout Europe since the early 20th century.
Commemoration of International Labor Day in front of the Horse Statue, Jakarta, Wednesday (1/5/2019). Photo source: Antara Foto
Another example that is not less important is America. More than a decade before the Declaration of Human Rights was born in 1935, the Wagner Act was born . In this regulation a strike is conceptualized as a right ( right to strike ). Through the Wagner Act , Uncle Sam was listed as the first state to recognize strikes as a right. Even the Wagner Act is analogous to the Magna Charta for workers in America.
Fifteen years before the birth of the Wagner Act , on April 11, 1919 the International Labor Organization (ILO) was born as part of the Treaty of Versailles, one year after World War I. The organization which in 2019 entered 100 years was founded with the aim of improving conditions for workers. as an effort to realize social justice throughout the world.
At the beginning of its existence, the ILO consisted of only 15 members and 9 countries. In line with the founding of the United Nations after World War II, namely in 1946, this organization also became part of the United Nations and is in charge of labor affairs. Headquartered in Geneva, the ILO now has 187 member countries. Indonesia has joined the ILO since 19 June 1950.
It is interesting to note here, the organizational structure of the ILO is relatively different from other organizations under the umbrella of the United Nations, such as UNESCO, FAO, UNCTAD, and others. The ILO’s organizational structure is tripartite, i.e. placing the government, employers’ organizations and trade unions on an equal footing in determining programs and policy-making processes.
Important to note here. Although it is never explicitly stated in the founding constitution of the ILO or the Philadelphia Declaration, the right to strike is implicit in the ILO Convention No. 87 of 1948 concerning the Right to Establish and Become a Member of Trade Unions and the ILO Convention No. 98 of 1949 concerning the Right to Association and Collective Bargaining.
From the ILO’s point of view, the right to strike cannot be separated from the freedom of workers to form or join trade unions, which is closely related to the right to bargain collectively. In its journey, the ILO continues to add a number of conventions and develop the International Labor Code which covers all issues related to labor issues.
Labor Reform Policy
During the New Order, when it came to labor policies, particularly regarding the issue of the right to strike, it was clear that the climate was not conducive. The concept of Pancasila Industrial Relations was formulated by the New Order authoritarianism. Although Indonesia has issued Law No. 18 of 1956 regarding the Ratification of ILO Convention No. 98 of 1949 concerning the Implementation of the Principles of the Right to Organize and Collective Bargaining, it can be said that it is far from being burnt.
The workers were co-opted in a single container and corporatically formed by the state, namely the All-Indonesian Workers Union (SPSI). When it comes to wage politics, it is no exception, it is also seen to be unilaterally and without involving the workers.
For the New Order’s perspective, even though strikes were not legally prohibited, through the Bakorstanas Decree No. 02/Satnas/XII/1990 and the Decree of the Minister of Manpower No. 342/Men/1986, the military had the right to mediate in the event of a labor dispute. As a result, encouraging strikes often results in intimidation. It often happens in the military field that it becomes the main tool to resolve labor strikes with repression.
Commemoration of International Labor Day in the Heroes Monument area, Surabaya, East Java, Wednesday (1/5/2019). Photo source: Antara Foto
Post-New Order, the 1998 Reformation agenda certainly became a blessing for labor policy. Ahead of the ILO Conference in June 1998, this means that one or two months after the fall of President Soeharto, the government has issued the Decree of the Minister of Manpower No. 5 of 1998 which allows the establishment of trade unions outside the SPSI.
Efforts to reform the hunting law continue. At least until 2004, the country had resolved the main issues of the legal reform agenda. In that year, Law No. 2 of 2004 concerning Settlement of Industrial Relations Disputes, was passed. This regulation is one of three regulations that cover labor issues. The other two are Law No. 21 of 2000 concerning Trade Unions/Labour Unions and Law No. 13 of 2003 concerning Manpower.
Not only that. Indonesia is the first country in Asia and the fifth country in the world which incidentally has ratified all the basic conventions of the ILO. Since Indonesia became a member of the ILO in 1950, at least until now it has ratified 20 conventions.
During the time of President BJ Habibie (1998 – 1999), intending to strengthen the Ministerial Decree No. 5/1998 above, the government issued Presidential Decree No. 83/1998 which ratified the ILO Convention No. 87/1948 on Freedom of Association and Protection of the Right to Organize. Even during this Third President, Law No. 20 of 1999 concerning the Ratification of ILO Convention No. 138 concerning the Minimum Age to be Admitted to Work was also passed.
President Abdurrahman Wahid (1999 – 2001) was also considered successful in improving the democratic climate, including in the labor sector. This is reflected in the enactment of Law No. 21 of 2000 concerning Trade Unions/Labour Unions.
Meanwhile, during the time of President Megawati (2001 – 2004), very fundamental regulations were also issued, namely Law No. 13 of 2003 concerning Manpower. This regulation replaces 15 labor regulations, so this law becomes an umbrella for other regulations.
Still in the era of the Fifth President, Law no. 2 of 2004 concerning Settlement of Industrial Relations Disputes, ratified. No less important is the ratification of Law no. 40 of 2004 concerning the National Social Security System, as an effort to adopt a social insurance system as has been practiced in Germany long ago.
Talking about reform efforts under President Susilo Bambang Yudhoyono, it is worth noting several important achievements, among others, Law No. 1 of 2008 concerning Ratification of ILO Convention No. 185 concerning Seafarers’ Identity Documents of 1958, also issued Presidential Decree No. 107 of 2004 concerning Wage Councils, and no less important is the determination of May 1 “May Day” as a holiday by Presidential Decree No. 24 of 2013.
Finally, the era of President Joko Widodo (2014 – 2019). Some achievements of labor law reform are also worth mentioning. The Jokowi government has issued Presidential Regulation No. 82 of 2018 concerning Health Insurance. This guarantee is incorporated in the BPJS Employment program, which includes, among others, work accident insurance, death insurance, old age insurance, and health care insurance.
In addition, there is also a policy for setting the UMP in Government Regulation No. 78 of 2015 concerning Wages. This policy has received intense scrutiny from the unions and has always been one of the main points of criticism. President Jokowi agreed to the demands of the workers regarding the revision of the Government Regulation.
But on the other hand the IMF actually praised this policy. According to the IMF, PP No. 78 of 2015 concerning Wages has a positive impact on the absorption of young and uneducated workers.
Back to the issue of the right to strike. To what extent is post-New Order Indonesia serious about adopting the right to strike? Let’s look at the definition of a strike in the regulation of Law No. 13 of 2003 concerning Manpower.
Article 1 Number 23 of Law No. 13 of 2003 concerning Manpower, defines a strike as: “A strike is an action by workers that is planned and carried out jointly and/or by a trade union to stop or slow down work.”
Article 137 states: “A strike as a basic right of workers/laborers and trade unions/labor unions shall be carried out legally, orderly and peacefully as a result of the failure of negotiations.”
If you listen to Article 1 Number 23 and Article 137, it is very clear that a strike is a basic right of workers ( right to strike ).
Of course, the policy of adopting the right to strike also has limitations that make strikes can be categorized as legal or illegal. In the context of technical regulation, the government has made the rules regulated in Kepmenakertrans No. 232 of 2003 concerning the Legal Consequences of an Illegal Strike. Strikes that are carried out illegally according to the technical instructions in the regulation will be qualified as ‘losers.’