A Few Wise Comments About The Whys

With your no doubt vast experience of Indonesia and matters Indonesian, I always felt that your court case rather like second marriages, represented the 'triumph of hope over experience'.

Perhaps in this case it would have been better to have adopted the adage of 'don't explain, don't complain - get even'.

As far as the judgement goes it might have serious implications for the average Indonesian wage slave - but then how many of them can afford to take Balinese vacations? I'm sure that your indignation is real but is it righteous (or should that be the other way round?).

Just a thought!

Anon (but presumably Antisthenes - see below)
| "May 13, 2008, 8:50 am" | #
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Good points Anon (but presumably Antisthenes), but let me say that finding time and credit in order to meet one's first grandchild has to take precedence over other matters. It was also the first time we have left Jakarta in nearly two years!

As for Indonesians affording Bali, you'd be surprised how crowded it apparently gets during the school holidays. We were told that this year June/July will be virtually sold out.

As for second marriages or, as in my case, third, let me say that this one has lasted a darn sight longer. Practice makes (near) perfect?

And, yes, the judgment does have implications for EVERY employee in this country. But should I have lain down and accepted totally illegal, even criminal, actions against me, and seemingly every other employee in their employ.

Note that an Indonesian SD (elementary) teacher brought a similar case before the court at the same time and she lost too. We expats do, however, have the precedent of a Singapore International School expat teacher winning a very similar case last year.

Penabur's intimidatory actions - they refused our final pay cheques or to process our residence papers/visas etc. unless we dropped our legal process - will probably be the subject of criminal actions. After all, I am a virtual prisoner here, albeit with the full knowledge of Immigration HQ and my embassy.

Finally, consider the implications for foreign investors here: if there are no certainties about employment practices, then there will be (further) anarchy.

Expect to hear a lot more about this.

Jakartass | Homepage | "May 15, 2008, 9:28 am" | #
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This is Indonesia; wake up! You only get what you bribe in the law courts and expats are powerless; your KITAS is for year and entitles you to be employed on a limited basis as an "advisor". You don't have any rights in this country and you are wasting your time I'm afraid.

Going to the supreme court? A bunch of expat teachers...a howler!

Anonymous | "May 15, 2008, 12:22 pm" | #
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"You don't have any rights in this country"?

That is deeply flawed cynicism, Anon. So you are saying that Indonesian housemaids in, say, Malaysia and Hong Kong, who are the subject of an ASEAN treaty, are better off in legal terms than foreign workers employed here? And that's OK?

I wonder, then, if we shouldn't get in touch with the Korean and Japanese embassies as their nationals far outnumber us.

BTW. I'll delete any further anonymous comments, although I'll accept pen names.

Jakartass | Homepage | "May 15, 2008, 12:15 pm" | #
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Whilst I agree that you have been treated shabbily by all and sundry in this my point really was that your overall stance and position when viewed from an Indonesian perspective could be accompanied by a murmur of the ironical 'kasian' for perhaps in judging your case the powers that be could have been swayed by the following:

A Here's this well educated foreigner on wages of 10 times or more than those of a local of similar ability and background demanding extra because he feels that he has been treated unfairly. He wants to be compensated with additional highly paid income for which he will not be working. Well being rich can be irksome.

We weren't actually paid for our last labours, as they stated in writing that they would.

B As a wealthy non-Indonesian he can afford at least to seek compensation for his perceived wrongs. Poor people cannot. Additionally the evidence he presents is highly critical of his Indonesian employers in inflammatory language too. His point might be a good one but there is no reason to be insulting and rude.

Wealthy? Not all expats live in enclaves and send their children to International Schools paid for by their employers. Have a browse through 'my' book and consider how remote I am (not) from Indonesian (read Jakartan) life and culture.

Nope, I can't afford to lose, and my ex-colleague in similar distress and similarly unpaid, spent c.Rp.70 million in bribes in order to process a new KITAS because, as I said, Penabur refused unless he/we dropped our legal case. This intimidation is, of course, subject to Indonesia's Criminal Code.

C The judge's cousin's mother-in-law's brother did some business with the aggrieved party (thats the school not Jakartass) and he said expat employees are always moaning about something or other - you think with their money they'd have nothing to complain about but they do.

Actually, we dropped our first set of lawyers when we discovered that the husband of one of them was a land broker in cahoots with Penabur.

D If he doesn't like the way things are done in Indonesia he should go home.

I am home. I have an Indonesian family, and have lived in the same (rented) house for over 20 years.

E He seems to think that law and justice are the same thing - well they're not.

But shouldn't they be?

The above perceptions are of course only supposition but I think there might be a grain of truth in at least some of it.

My point I guess is overall why did you not just shrug and walk away? (or fire bomb the school!) as we all must do sometimes, I'm sure your employers only got nasty when you started 'kicking off'.

They got nasty before our treatment having intimidating native speaker teachers for the previous two and a bit years: in employing them on business and tourist visas, in forcing prospective employees to negotiate separately for salaries and in refusing to allow time to consider the job offers.

"If you don't want it, there are plenty of others who do, and for less money."

I know that the above is provocative and most of it is 'just suppose' but this case could be another 'Jarndyce vs Jarndyce' (who? what?) and do you really want your life to be dominated by this thing.

Sure it dominates. Funding a family whilst in a state of uncertainty isn't easy and it has affected my health - my hair wasn't white before. However, as Penabur didn't provide any insurance for their expat employees for the first two years, not even through Jamsostek, the state insurance company, as they were legally bound to do, the stress might well have got to me eventually.

I guess what I'm trying to say is that you're right but you're wrong.

Nope, I'm right and Penabur is wrong, terribly wrong.

Anon (but presumably Antisthenes - see below)
| "May 15, 2008, 12:25 pm" | #
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My stance is really quite simple. In this so-called age of reformasi, as Indonesians begin to come to terms, after 40 years of cowed obeyance, with the notion of communal respect and individual responsibility, it is the rule of law, particularly internationally respected conventions to which Indonesia have become signatories, which should be paramount.

My arguments are certainly with my/our erstwhile employers, but I have, as yet, not written anything which can be construed as inflammatory. Anything submitted by our legal team, and everything I write, has documentation to back up our case - including my comments above about visas and intimidation. Oh, and a death threat.

That I have not been sued for defamation is possibly an indication or admission by the employers that they understand this and have, therefore, knowingly flouted both the civil and criminal codes.

As for demanding 'extra', we are claiming nothing more than our legal entitlements according to Act No.13, 2003, concerning Manpower. (I can give full verse and chapter, i.e. Articles, and probably will - later.)

BTW. I am home! And the head of my legal team is a neighbour.

I may have done better by going to the Human Rights Commission or to LBH (the Legal Aid Institute), but having the respect of the community I've lived in for 20+ years has to count for something.

As for the rights of all to be treated equally before the law. This is not just a personal matter, stressful though it is.

Jakartass | Homepage | "May 15, 2008, 1:21 pm" | #
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As I said before I feel that you're right, but wrong to pursue matters; injustice is all around us but living in a state of indignation, albeit righteous is surely not a healthy way of carrying on.

I agree that the insouciance of the general population here to serious breaches of human rights is a concern and that beating the drum for contractually sodomised expat teachers is a worthy cause to follow.

However is life long enough?

As for your comments regarding your horror for the flouting of the law and that something must be done and justice will out, I'm sure that yours is just one of many arbitrary, unfair and wrong decisions made by a legal system that, as I'm sure your neighbour will agree, is seriously flawed and essentially runs on graft and favour.

Read your previous posts regarding Tommy S and Munir and many more. I can only say once again with your long experience of the way things are that you optimistically expected that this time it would be different.

As for the threat to foreign investment that this ruling seems to pose, I can only say that many of the foreign companies presently extracting enormous wealth from this poor country may well applaud heartily labor laws that allow them to brook no opposition, and it must be faced that your test case might well help them along.

Also should we not allow the Indonesians to fight their own battles against injustice?

Till the revolution my friend and this time not anon.

Antisthenes | "May 15, 2008, 2:10 pm" | #
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For evil to exist, good men do nothing.

As you have noted, through Jakartass I have been championing the rights of underdogs. Now I've become one, are you suggesting that I should roll over and have my tummy tickled?

No fucking chance, mate!

I'm not going to google the source of the quote above, but to suggest that I should do nothing is somewhat naive, isn't it? Surely it's the personal which provides the focus and the essential fires in the belly for the fight ahead.

Jakartass | Homepage | "May 15, 2008, 2:30 pm" | #

A Blow Against Labour

The following was published on 8 May 2008 by HukumOnline, the major library concerned with Indonesian legal matters, and is reproduced with their kind permission.

It relates to my legal case against BPK Penabur claiming unfair and arbitrary dismissal, a claim that we lost in the Industrial Relations Court, albeit having gone through the necessary initial process of negotiation under the auspices of the Ministry of Manpower.

The decision is of major concern to every employer or employee in Indonesia, and especially expatriates. I have not editorialised the article in any way, but in the weeks (months? years?) to come I will be adding a commentary to this blog whilst seeking to publicise those details of malfeance, intimidation and possible corruption of which we have documentary proof, not least because we are worried about the implications for all former colleagues, both expatriate and Indonesian.

Industrial Relations Court Decision - A Win for Employers

The Industrial Relations Court (Pengadilan Hubungan Industrial / PHI) located in the Central Jakarta District Court has handed down an interesting decision that has implications for the employment of expatriates across the board. This particular dispute arose between a number of teachers who believe that they have been unfairly, arbitrarily, and unilaterally dismissed contrary to the provisions enshrined in the Labor Law (Law No. 13 of 2003) to protect them.

In a blow to labor of all forms in Indonesia the PHI has sided with the employers in this case. Why is it a blow? The decision expands the previous interpretations of the provisions of the Labor Law in a manner which clearly favors employers over their employees. This brings into question whether employees have any real employment security once an employer decides to terminate their services for any reason, real or imagined, in a unilateral manner.

The Labor Law is presumably to enhance and protect the interests of both parties in this situation and to ensure this occurs a limited interpretation of the provisions must be applied. Limited in this sense refers to interpretations that comply not only with the spirit of the provisions but with the wording of those provisions as well.

An interesting aside to this case is that there was a previous mediated decision formulated by the Labor and Transmigration Office of West Jakarta that indicates that the Respondents in this case were in breach of the provisions of the law. This mediated decision made an award to the Plaintiffs. However, there was a stipulation that if either party disagreed with the award then they could proceed with an action in the PHI. In this case the Respondents chose this option. It is worth noting that the PHI did not give any consideration to the mediated settlement decision of the Labor and Transmigration office despite the document being entered into evidence.

Of most interest to employers in this decision is that Specified Term Employment Contracts (Perjanjian Kerja Waktu Tertentu / PKWT) cannot morph into Unspecified Term Employment Contract (Perjanjian Kerja Waktu Tidak Tertentu / PKWTT) even where the employer fails to renew the expired PKWT. The reasoning offered by the PHI was that the Labor Law requires expatriates to be on PKWT.

The literal reasoning and application of the provision above flies in the face of the creative interpretation offered by the PHI with regard to the language of PKWTs. The Labor Law at Article 57(1) seems to explicitly suggest that a PKWT must be in Indonesian. One of the claims of the Plaintiffs was that the only contracts they had were in English. However, the PHI held that the contracts in English fulfilled the necessary requirements under the law.

For employees it is important that they understand that once they have been terminated that the “clock is ticking”. This means that the prevailing laws and regulations only allow for a certain amount of time to elapse before any claim must be lodged. It is important to note that the PHI made specific reference to matters that were submitted outside of the stipulated time frame.

However, in a win for employees, the PHI held that if an individual was engaged into employment after the mandatory retirement age then an employer could not rely then on Article 167 to terminate the employee because they had entered mandatory retirement age.

The decision was determined on 8 April 2008 and read out in open court on 17 April 2008.

The Plaintiffs have already commenced the process of appeal.